Whitaker v. Douglas
| Decision Date | 11 December 1954 |
| Docket Number | No. 39493,39493 |
| Citation | 177 Kan. 154,277 P.2d 641 |
| Parties | Percy WHITAKER, Appellant, v. William H. DOUGLAS, R. A. Douglas, and M. M. Douglas, doing business as Douglas Construction Company, a Copartnership, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Allegations in an answer which are not admitted by the reply are not entitled to consideration in ruling on a defendant's motion for judgment on the pleadings.
2. A motion for judgment on the pleadings is to be regarded as a demurrer, treating it as admission of all facts well pleaded by opposing parties, and leaving no issue of fact to be determined, and the court in so ruling on such a motion or demurrer is not justified in reaching out and making additional facts a part of the pleadings to which the motion or demurrer is lodged.
3. A motion for judgment on the pleadings, like a demurrer, is considered entirely upon the allegations contained in the pleadings and the proper exhibits attached thereto, and cannot serve to bring additional facts into the pleadings which might constitute a defense thereto.
Herbert A. Marshall, Topeka, argued the cause, and Allen Meyers, Philip C. Gault, and Doral H. Hawks, Topeka, were with him on the briefs, for appellant.
T. M. Lillard, Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter and Charles S. Fisher, Jr., Topeka, were with him on the briefs, for appellees.
This was a common-law action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. Plaintiff appeals from the order of the trial court sustaining defendants' motion for judgment on the pleadings.
The pertinent part of the petition alleged plaintiff's residence; that the defendants were co-partners engaged in the construction business; that plaintiff was operating a truck with cement mixer attached, the aggregate weight of which was fourteen tons; that he was delivering the cement for the Victory Sand Company, his employer, to the defendant construction company; that defendants were engaged in constructing a building on State property, and in connection therewith constructed a ramp about sixty feet in length on the side of the building to the second floor level; that the ramp was under the direction, supervision and control of the defendants and their agents, and had been constructed by them in order that the trucks operated by plaintiff, and other trucks similarly engaged, could back into a position to permit the dumping of concrete being used by defendants in constructing the building; that the ramp was made of dirt to a point about six feet south of the south wall of the building, and the open area of approximately six feet from the end of the earthen ramp to the building was bridged by four 3 X 12 planks, which acted as a runway of two planks each for the right and left wheels of trucks using the ramp, and that the ramp was negligently and carelessly constructed and was not a safe place for trucks to back; that in the use of the ramp by plaintiff in the operation of his truck, he was directed by an employee of the defendants acting in the capacity of a flagman in furtherance of defendants' business, and on the invitation of defendants' flagman, plaintiff was backing his truck up the ramp expecting to stop the truck at the end of the eastern portion thereof, when his truck was in proper position to discharge the load of cement, and the plaintiff was looking to the rear while so backing, relying upon the defendants' flagman, who was regularly employed as such to properly signal him when and where to stop on the ramp, but that the flagman negligently and carelessly failed to give any warning or signal to plaintiff of his truck's approach to a position of imminent danger on the ramp; that the planks gave way under the weight of plaintiff's truck, causing it to overturn, pinning the plaintiff in the cab, causing him serious injuries alleged in detail.
Plaintiff alleged the defendants were negligent in failing to properly construct and maintain the ramp, and negligent in that their agent and employee, while acting in the scope of his employment as a flagman to direct plaintiff and other drivers on the project in the operation of their trucks on the ramp, carelessly and negligently failed to give any signal or warning to plaintiff to stop as he backed his truck upon the ramp into a position to discharge his load of concrete. The petition closed with a prayer for damages allegedly sustained.
Defendants' answer admitted the residence of...
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