Wilburn v. Boeing Airplane Co.

• Decision Date: 10 November 1961
• Docket Number: No. 42298,42298
• Parties: Marcia Ruth WILBURN, an Incompetent Person, by Roy F. Montgomery, Her Guardian, Appellee, v. BOEING AIRPLANE COMPANY, a Corporation, and the Board of County Commissioners of the County of Sedgwick, Appellants.
• Court: Kansas Supreme Court

Page 246

366 P.2d 246

188 Kan. 722

Marcia Ruth WILBURN, an Incompetent Person, by Roy F Montgomery, Her Guardian, Appellee, v. BOEING AIRPLANE COMPANY, a Corporation, and the Board of County Commissioners of the County of Sedgwick, Appellants.

No. 42298.

Supreme Court of Kansas.

Nov. 10, 1961.

Rehearing Denied Dec. 14, 1961.

Syllabus by the Court

1. The workmen's compensation act is not to be construed liberally in favor of compensation when an injured workman seeks compensation--and construed strictly against compensation when he seeks to recover damages against his employer. In other words, the same rule and yardstick, as applied to the same facts, must govern--whether invoked by the employee or the employer.

2. Under the provisions of G.S.1949, 44-508(k), when an employee sustains injuries occurring while he is on his way to assume the duties of his employment, or after leaving such duties, the proximate cause of which injuries is the employer's negligence, they are injuries arising out of and in the course of the employment and are therefore compensable.

3. Where an employee's injury is compensable under the workmen's compensation act his remedy against his employer is exclusively under the act, and a common-law action to recover damages for the injury will not lie against his employer.

4. Generally speaking, means taken by a municipality in the control and regulation of traffic upon the streets and highways constitute a governmental function.

5. It is an elementary rule in this state that municipalities are not liable for negligence in the performance of a governmental function, unless such liability is expressly imposed by law. An exception to such rule is that the doctrine of immunity does not extend to acts where the conduct of the municipality results in creating and maintaining a nuisance.

6. Although perhaps incapable of precise definition, the word 'nuisance' is generally held to mean something which interferes with the rights of persons, whether in person, property, or enjoyment of property or comfort, and to mean an annoyance, that which annoys or causes trouble or vexation, that which is offensive or noxious, or something that works harm, inconvenience or damage. What may or may not constitute a nuisance in a particular case depends upon many things, and each case must of necessity depend upon its own particular facts and circumstances.

7. Plaintiff, an employee of Boeing Airplane Company, brought a common-law action against Boeing and the board of county commissioners of Sedgwick county to recover for injuries sustained after leaving the duties of her employment when struck by an automobile being driven by a third party. The petition alleged--all as set out in the opinion--that her injuries were proximately caused by a 'nuisance' condition at the crosswalk within which she was struck, and that such nuisance was created and maintained by defendants. Defendants have appealed from an order overruling their joint demurrer to the petition. The record is examined and considered, and it is held:

(a) As to defendant Boeing, the petition alleges negligence thus bringing plaintiff within the provisions of G.S.1949, 44-508(k) (syl. 2).

(b) Plaintiff's injuries, being compensable under the workmen's compensation act, bars her from bringing a common-law action for damages against her employer (syl. 3).

(c) As to defendant board of county commissioners, the petition alleges negligence--for which--under the doctrine of immunity (syl. 5), the county is not liable.

(d) The petition does not allege a 'defect' in the highway within the meaning of G.S.1949, 68-301.

(e) The demurrer to the petition should have been sustained as to each defendant.

Robert N. Partridge, Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, were with him on the brief, for appellant, Boeing Airplane Co.

Ralph E. Gilchrist, Carl L. Buck and Bernard V. Borst, Wichita, were on the brief for appellant, The Board of County Comrs. of Sedgwick County.

John C. Frank and Theodore M. Utchen, Wichita, argued the cause, and Thomas W. Cunningham, Patrick F. Kelly and Fred J. Gasser, Wichita, were with them on the brief, for appellee.

PRICE, Justice.

This is a common-law action against Boeing Airplane Company and the board of county commissioners of Sedgwick county to recover for injuries sustained by plaintiff, an employee of Boeing, when she was struck by an automobile being driven by a third party. The accident occurred while plaintiff was crossing a public county street adjacent to Boeing's plant.

The theory of plaintiff's petition is that the crosswalk in which she was struck was in a dangerous and hazardous condition amounting to a nuisance, and that such condition was created and maintained jointly by defendants.

Defendants appeal from an order overruling their joint demurrer to the petition.

The questions involved in the case will develop as the opinion progresses.

We are reluctant to encumber an opinion with lengthy quotations from pleadings. On the other hand, all questions in the case turn upon the construction to be given the material allegations of the petition, and they are of such nature that no attempt to summarize will be undertaken. After alleging the identity of the parties to the action--that Boeing maintains a general office and factory for doing business; that the board of county commissioners is charged with the duty of supervising and maintaining the county highways in a safe condition, and that on the date in question, September 16, 1958, plaintiff, thirty-four years of age, was an employee of Boeing on the second shift from 4:30 p. m. to 11:30 p. m.--the petition alleges:

'3. The defendant, The Boeing Airplane Company, is and at all times material hereto was an industrial corporation, engaged in business for profit. Said Boeing Airplane Company either owns or has under lease numerous large and spacious factory buildings and warehouse facilities located for a distance of approximately one mile on either side of a Sedgwick County road known as South Oliver Street, the supervision and maintenance of which, at all times material hereto, was the obligation of the Board of County Commissioners of Sedgwick County, Kansas. South Oliver Street runs in a northerly and southerly direction and divides the factory grounds of Boeing Airplane Company. At all times of the day and night there is busy vehicular traffic on South Oliver Street. The Boeing Airplane Company employed in excess of 20,000 persons and operated on a 24 hour, 3 shift basis. As a result of such employment, at times of each shift change, there is and was a very heavy congestion of traffic in and out of various parking areas owned, leased or controlled by the defendant, The Boeing Airplane Company, the entrance and exits of said parking areas opening onto said South Oliver Street. Said traffic congestion had existed for a number of years, at the time of each shift change prior to the time plaintiff received her injuries, as hereinafter alleged. The defendant, The Board of County Commissioners, had actual knowledge of said traffic congestion at time of shift changes. In addition to there being a heavy congestion of motor vehicular traffic entering into and exiting from said various entrances to and exits from said parking areas, there is at the time of each shift change and has been for a number of years prior to the time plaintiff received her injuries, a large number of pedestrians, employees of the defendant, Boeing Airplane Company, crossing east to west and west to east to the various parking areas, furnished by said Boeing Airplane Company for the use of its employees. The defendant, The Board of County Commissioners of Sedgwick County, and the defendant, The Boeing Airplane Company had long prior to the occasion on which plaintiff was injured installed crosswalks at five places across said South Oliver Street, in the immediate plant or factory area of the defendant Boeing Airplane Company, for the use of the employees of the defendant Boeing Airplane Company, and other persons; said crosswalks being located at other than intersections of roads, streets or highways.

'4. Said crosswalks were installed and maintained by the said Board of County Commissioners and the Boeing Airplane Company. At all times material hereto, Boeing Airplane Company voluntarily took upon itself the public duty of policing, supervising, controlling and directing pedestrian traffic across said South Oliver Street, at each of said crosswalks. The defendant, The Board of County Commissioners at all times material hereto and for a long time prior thereto knew the defendant, Boeing Airplane Company, had undertaken this public function and acquiesced therein and did nothing whatsoever in regards to the regulating, controlling, supervising or directing of pedestrian traffic at any of said crosswalks. In addition to the assumption of the public function of policing, supervising, controlling and directing pedestrian traffic at said crosswalks the defendant, Boeing Airplane Company, voluntarily assumed the public function of policing, supervising, controlling and directing motor vehicular traffic on South Oliver Street and at the entrances and exits of its various parking areas heretofore described giving ingress and egress onto said South Oliver Street. By reason of said heavily congested motor vehicle and pedestrian traffic entering and leaving the premises of the defendant, Boeing Airplane Company, at times of shift changes, there were created on numerous occasions traffic jams, the occurrence of which was well known to both defendants herein. There is and was a lack of uniformity in the policing, directing, supervision and control of traffic, both at entrances and exits to said various parking areas and at said...