Striplin v. Kansas Gas & Elec. Co., 45499

• Decision Date: 06 December 1969
• Docket Number: No. 45499,45499
• Citation: 461 P.2d 825,204 Kan. 324
• Parties: Eva Mae STRIPLIN, Appellant, v. KANSAS GAS & ELECTRIC COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 825

461 P.2d 825

204 Kan. 324

Eva Mae STRIPLIN, Appellant, v. KANSAS GAS & ELECTRIC COMPANY, a Corporation, Appellee.

No. 45499.

Supreme Court of Kansas.

Dec. 6, 1969.

Syllabus by the Court

In an action to recover damage sustained when the car driven by plaintiff struck a utility pole owned and installed by defendant utility company in the driveway entrance to a gasoline service station, the jury made special findings that plaintiff was not negligent and that defendant was negligent, and returned a general verdict for plaintiff for $1,700.00. Defendant's motion to set aside the verdict and for judgment notwithstanding the verdict (K.S.A. 60-250) was sustained-the court being of the opinion that one of the instructions was erroneous and that the evidence showed plaintiff to be guilty of contributory negligence as a matter of law. On appeal by plaintiff from that ruling the record is examined and it is held:

(1) The instruction in question was not prejudicial to defendant.

(2) The question of contributory negligence was properly submitted to the jury.

(3) The special findings of the jury were supported by evidence.

(4) Defendant's motion to set aside the verdict and for judgment notwithstanding the verdict was erroneously sustained.

(5) The verdict is reinstated.

Terry O'Keefe and Walter C. Williamson, Wichita, argued the cause, and Dale Kidwell and Kenneth M. Nohe, Wichita, were with them on brief for appellant.

Ralph Foster, Wichita, argued the cause, and Stanley Garrity, Vernon D. Just and William A. Wells, Wichita, were with him on brief for appellee.

PRICE, Chief Justice.

This is an action to recover of personal injuries and other damage sustained by plaintiff when the car driven by her struck a utility pole owned and installed by defendant company in the driveway entrance to a gasoline service station.

The jury made special findings and returned a general verdict for plaintiff for $1,700.00.

Defendant's motion to set aside the verdict and for judgment notwithstanding the verdict (K.S.A. 60-250) was sustained.

Plaintiff has appealed from that ruling and asks this court to reinstate the verdict.

For purposes of this appeal the facts may be highly summarized.

The service station in question was at the southwest corner of a street intersection in Wichita. The east-west street (Kellogg) was being widened, which made it necessary for defendant to move its unility poles at the intersection. The pole in question was moved to a location substantially in the north half of the east driveway leading into the service station from the north-south street. It was a black creosoted pole. There appears to be no question that it was installed in accordance with state highway and city specifications. No warning signs were attached to it, and because of its color was difficult to see at night.

On the evening in question-after dark-plaintiff aproached from the south-driving slowly. She turned to her left into the driveway to the service station. She did not see the pole 'until she hit it'. The immediate area was well lighted from lights of the service station, a grill and liquor store. Plaintiff was familiar with the driveway-having been to the service station on a number of occasions. As a result of striking the pole plaintiff's car was damaged and she sustained personal injuries.

The pretrial order contained a stipulation that the pole was located within the right-of-way lines of the north-south street, south of Kellogg, but outside the curb line of the north-south street for traffic using that street. Among the issues of fact to be determined were whether defendant was guilty of negligence and whether plaintiff was guilty of contributory negligence. The pretrial order further recited that plaintiff's contentions were that defendant was negligent in placing a dark utility pole in the driveway of the service station where the public was invited to travel, and in not having proper lighting on the pole or other appropriate warning devices. The order further recited that defendant's contentions of contributory negligence were, among other things, that plaintiff failed to keep a reasonably careful lookout; that she failed to look and see that which was plainly visible, and that she knew, or should have known, of the location of the pole because of recent familiarity with the driveway. It was further recited in the order that the questions of law for determination were whether, under the facts, plaintiff had a claim for which relief could be granted; whether plaintiff was guilty of contributory negligence as a matter of law, and whether there was any duty on the part of defendant to warn plaintiff that the driveway to the service station was being altered or not available for use by business invitees of the station.

The parties proceeded to trial. After stating the contentions of the parties, the court gave the usual and standard instructions on negligence and ordinary and proper care. Instructions Nos. 3 and 7 were devoted to contributory negligence and the rights of the parties in the event such negligence was found. Instruction No. 5 was:

'The law requires public utilities to erect and to maintain service facilities with reasonable care to avoid hurt or injury to others. If the circumstances of this case are such that the defendant, by using ordinary care, would recognize at once that...