Stephenson v. W.R. Grimshaw Co.

• Decision Date: 09 April 1938
• Docket Number: 33660.
• Parties: STEPHENSON v. W. R. GRIMSHAW CO.
• Court: Kansas Supreme Court

77 P.2d 981

147 Kan. 532

STEPHENSON v. W. R. GRIMSHAW CO.

No. 33660.

Supreme Court of Kansas

April 9, 1938

Syllabus by the Court.

In action against construction company for injuries sustained by pedestrian in fall when she tripped over plank lying across sidewalk at place where construction work was going on evidence held sufficient to warrant inference that construction company, through its agent or employees, in course of work had placed plank on sidewalk and negligently permitted it to remain there.

In action against construction company for injuries sustained by pedestrian in fall when she tripped over plank lying across sidewalk at place where construction work was going on judgment was correctly entered in pedestrian's favor on general verdict, and company's motion for judgment on jury's special findings that jury could not state from evidence what person placed board across sidewalk, was properly overruled.

In an action for damages for injuries sustained by falling over a plank negligently laid across a sidewalk, the record examined, and held, defendant's demurrer to plaintiff's evidence, its motion for an instructed verdict, and its motion for judgment on the jury's special findings, were properly overruled, and judgment was correctly entered in plaintiff's favor on the general verdict.

Appeal from District Court, Crawford County; Leland M. Resler Judge.

Action by Mae Stephenson against W. R. Grimshaw Company for damages sustained by plaintiff when she tripped on plank lying across a sidewalk at place where defendant was constructing a building. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

DAWSON C. J., and THIELE and WEDELL, JJ., dissenting.

A. B. Keller, George R. Malcolm, C. A. Burnett, and Karl K. Grotheer, all of Pittsburg, for appellant.

A. H. Carl, of Pittsburg, for appellee.

DAWSON Chief Justice.

This was an action for damages sustained by plaintiff who tripped on a plank negligently laid across a sidewalk, which caused her to fall and injure herself.

The locus in quo was as follows: Pine street and Walnut street in the city of Pittsburg run north and south. Seventh street runs east and west, intersecting Walnut and Pine streets. There is a brick or concrete sidewalk, 5 feet wide, on the south side of Seventh street in that locality.

Early in 1936, the defendant W. R. Grimshaw Company had undertaken the construction of a building for the water department of the city near the southwest corner of the intersection of Seventh and Pine streets. Defendant had 25 or 30 men employed, and considerable excavation work had been done. There was some testimony that dump trucks had been used to haul earth across the sidewalk, and some earth or mud lay on the sidewalk. On the premises where the excavation work was being done, a considerable number of pieces of boards and planks were lying about, not far from the sidewalk.

On the evening of March 7, about 7:30, the plaintiff walked eastward on the sidewalk on the south side of Seventh street, between Walnut and Pine streets. When she arrived immediately north of where the excavation work was being done, she tripped on a plank, 12 feet long, 2 feet wide, and 2 inches thick, which was lying across the sidewalk, and which caused her to fall and sustain injuries.

Plaintiff brought this action alleging that on March 7, 1936, defendant, through one J. L. Bridges, its agent and foreman, had negligently placed the plank across the sidewalk; that while exercising due care she came along the sidewalk about 7:30 p. m.; that there was no light or signal thereabout; and that she caught her left foot and ankle on the plank, which caused her to fall and sustain injuries which her petition particularized.

Issues were joined and the cause was tried before a jury. In addition to the facts summarized above, there was evidence that where plaintiff fell the sidewalk was "very dirty," and also muddy because of recent rain, and that at the time it happened it was dark.

Plaintiff testified to the extent and severity of her injuries, but that she continued to work at her employment (at a WPA sewing room) for several weeks, but eventually about the last of April, she called on Bridges, defendant's foreman, and told him of her injuries, and asked if his company could do anything for her. Bridges expressed his regret that she had waited so long before she told him; and said that if he had known it sooner he could have investigated the matter; but he told her to report to Dr. Kiehl at the Community Hospital, which she did.

Defendant demurred to plaintiff's evidence on the ground that it wholly failed to sustain the specific allegations of negligence charged in plaintiff's petition; that there was no evidence that Bridges had placed the plank across the sidewalk, and no evidence that it had been so placed by defendant or by any agent or employee of it. This demurrer was overruled. So, also, was defendant's motion for a directed verdict.

Certain instructions given by the court were not complained of, and so became the law of the case. Burns v. Hunter, 126 Kan. 736, 271 P. 398; Winston v. McKnab, 134 Kan. 75, 4 P.2d 401; Thogmartin v. Koppel, 145 Kan. 347, 65 P.2d 571. These read:

"15. The mere receipt of an injury is never evidence of negligence. In this case the mere fact that plaintiff received certain injuries, if you find that she did receive any injuries by falling on the sidewalk, is not evidence of negligence on the part of defendant. ***

"22. If you find from a preponderance of the evidence in the case that the plaintiff was injured on or about March 7, 1936, at the place alleged in her petition and that her injuries and damages, if any, were caused by the negligence alleged by her which is in substance that a board or plank as described in her petition was placed across said sidewalk by J. L. Bridges, an agent and servant of the defendant, that is to say, if you find that the plaintiff was injured by the negligence and carelessness of the defendant and you find that her injuries and damages were caused by her falling over a board placed on said sidewalk by J. L. Bridges, and that there was no contributory negligence on the part of plaintiff that contributed to or helped cause her injuries, then your verdict should be for the plaintiff. But if you do not so find your verdict should be for the defendant."

The jury returned a general verdict for plaintiff in the sum of $896.50, and answered special questions thus:

"1. Q. Was there a board as described in plaintiff's amended petition, across the sidewalk in question, at a place about forty feet east of the alley running north and south from Sixth Street to and through Seventh Street, at the time plaintiff claims she fell and was injured? A. Yes.

"2. Q. If you have answered the above question in the affirmative, then state when said board was placed across said sidewalk. A. Sometime before 7:30 P. M., Mar. 7, 1936.

"3. Q. If you have answered question numbered one in the affirmative, then state whether or not you can find from the evidence in this case what person it was that placed said board across said sidewalk. A. No. ***

"5. Q. If you find for the plaintiff, then state whether or not you do so find because from the evidence you believe said board was carelessly and negligently placed across said sidewalk. A. Yes. ***

"7. Q. Were there six electric lights at a distance of approximately one hundred eighty to two hundred feet from the place the plaintiff claims to have fallen at the time the plaintiff claims to have fallen? A. Yes."

Defendant filed a motion for judgment on the answers to the special...