152 P.2d 794 | Kan. | 1944
The opinion of the court was delivered by
This was an action by a widow to recover damages for the wrongful death of her husband who was killed by a backing truck. Plaintiff prevailed and defendant appeals.
Appellant seeks a reversal of the judgment upon the grounds the trial court erred in overruling (1) his demurrer to appellee’s evidence and (2) his motion for judgment on the evidence after both parties rested. Appellant’s third contention is the verdict was excessive. The subjects will be treated in the order stated.
Was there sufficient evidence of appellant’s negligence to require the submission of that issue to the jury? A determination of that question, of course, requires that we consider only evidence which proves, or tends to prove, appellant’s negligence and that all reasonable inferences to be drawn therefrom be resolved in appellee’s favor.
The appellant is Cecil Bassett who was doing business as the Bassett Brothers Construction Company. The Austin Company was engaged in the erection of an airplane plant for the Defense Corporation, the plant to be operated by the Boeing Airplane Company at Wichita. The Austin Company had employed appellant to deliver and dump sand into holes which had been made in the ground during excavation work. The excavation of dirt was made necessary in order to build a tunnel under a building. Appellant’s truck was operated by one of his employees. Decedent was employed by the Austin Company on a different job in connection with the construction of the building. His work consisted in pulling nails and cleaning out lumber. He was working approximately 50 yards north of a building known as the assembly building. The tragedy occurred shortly after the regular working hours of decedent. He quit work at 4:30 p. m. Appellant’s truck drivers were still operat
There was a space of approximately 8 feet between the west plank and the east wall of the warehouse and a space not quite so wide between the east plank and the steel girders. There were three other possible routes which workmen might use in walking from the north end to the south end of the building and vice versa. One route was on the sand on either side of the planks but the sand was soft and
Appellant’s sand-dumping trucks pulled up to within a short distance from the place where decedent was working and then backed south to the entrance into the passageway. Each truck would wait at the entrance until the truck in the passageway had pulled out. There was a continuous stream of trucks operating in the passageway on the day in question. Decedent had been working for the Austin Company about sixty days. While backing in a southerly direction over the planks in the passageway the truck driver kept the left door of the truck open in order to make certain that the west wheels stayed on the planks. Appellant had no one on the back of the truck or elsewhere to warn workmen of an oncoming truck. The truck in question was backing at a gait about twice as fast as a man would ordinarily walk. The truck in question had backed on the planks a distance of approximately 150 to 200 feet when the accident occurred. Decedent was walking south on the east plank while the driver of the truck was watching the west plank. There were twenty rivet drivers at work. They were making a great deal of noise. Decedent’s eyesight and hearing were good. Someone hollered just before the accident but the truck backed over decedent. He was killed instantly. It appears neither the truck driver nor decedent heard the warning or that neither of them heard it in time to avoid the accident.
There were fifteen men working in the same crew with decedent. Eleven of them were walking south on the planks in the passageway at the time decedent was killed. Ten of them were on the planks approximately fifty yards farther south. There was testimony of a steel worker who had been on duty for only an hour. He testified that the truck which backed over the decedent was the only truck in the passageway he had observed while he was there.
Appellant insists that since the accident occurred on private property the case is not governed by the general rules pertaining to traffic on public roads. Clearly statutes relating specifically and solely to the operation of vehicles on public highways do not pertain to the operation of vehicles on private property. It does not follow, however, that operators of motor vehicles on private property are not held to the exercise of reasonable care and diligence with respect to the safety of others who reasonably may be expected to use a driveway on the premises. Appellant’s truck drivers had been dumping sand in this passageway much of the time, although not continually, since July 10, 1941. The accident occurred on March 13, 1942. There was evidence the truck tracks had been used commonly by employees over a period of seven weeks and also that they were so used during the week immediately preceding the accident. This was the first day within a week that trucks had dumped sand in the passageway. Ten other workmen in decedent’s crew were quitting work at the end of the day. They were on the way to the office of the Austin Company to check out. They also were walking on the truck tracks at the very time this accident.occurred. The truck driver’s eyes were fastened upon the west plank which he was watching as he backed his truck. In that position he could not see the east plank at all. Appellant had no one stationed at the rear of the truck or elsewhere to warn the truck driver of persons who might be using the planks as a walkway. Whether under all the circumstances appellant and his truck driver in the exercise of reasonable
Appellant asserts decedent was guilty of contributory negligence as a matter of law. At the close of appellee’s evidence judgment was not requested upon that evidence for the reason it disclosed decedent’s contributory negligence but it was sought only upon the ground that evidence was not sufficient to justify relief against appellant. That motion for judgment was treated as a demurrer and was properly overruled. Appellant introduced his evidence and moved for a directed verdict for the reason that under all of the evidence appellee was not entitled to recover.
Appellee states appellant made no contention during the trial or on the post-trial motions that decedent was guilty of contributory negligence which barred recovery as a matter of law. While the above statement by appellee is not denied we prefer in this case to treat the question of contributory negligence under appellant’s motion for a directed verdict. We need not, however, again review appellee’s evidence previously narrated at considerable length. We think the testimony considered as a whole did not establish appellee’s contributory negligence as a matter of law. All of the evidence, when considered in the light most favorable to appellee, presented a situation where reasonable minds might differ as to whether decedent exercised reasonable care for his own protection. Under such circumstances it was the province of the jury to determine the question of decedent’s contributory negligence (Meneley v. Montgomery, 145 Kan. 109, 112, 64 P. 2d 550, and cases therein cited) and the court so instructed the jury.
Appellant relies upon Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438; Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472; Crowder v. Williams, 116 Kan. 241, 226 Pac. 784, and some decisions from other jurisdictions. In the Bessette case plaintiff’s evidence disclosed defendant had no reason to anticipate plaintiff’s presence in the immediate vicinity of the accident. In the Hendren case plaintiff’s evidence failed to disclose just how the accident, in fact, occurred. We there applied the familiar doctrine that negligence is never pre
We have examined the various cases from other jurisdictions which counsel for appellant with their customary industry have presented. We do not deem it necessary to analyze the cases separately. In the final analysis the question is a factual one as to whether under the particular circumstances appellant or his truck driver in the exercise of ordinary care should have anticipated the presence of workmen at the time in question and whether they exercised reasonable care to avoid injury. It is also a factual question whether decedent should have anticipated a backing truck at the particular time and whether under the facts disclosed he was guilty of contributory negligence in not leaving the planks in time. Here decedent, of course, did not testify. Ordinarily the presumption is that a person with love of life, common to all, exercises such due care as the circumstances permit to protect himself from injury. (Eidson v. Railway Co., 85 Kan. 329, 116 Pac. 485; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 284, 139 P. 2d 859.) In view of this presumption and the lack of evidence to clearly overcome it as a matter of law we think the motion for a directed verdict was properly overruled.
A few instructive cases pertaining to the subject of care required by parties in cases involving the backing of vehicles on private property are Patterson v. Edgerton Sand & Gravel Co., 227 Wis. 11, 277 N. W. 636; Foreman Co. v. Williams, 171 Md. 55, 188 Atl. 25; Powell v. Brosnahan, et al., 232 Mo. App. 1161, 115 S. W. 2d 140; Yamauchi v. O’Neill, 38 Cal. App. 2d 703, 102 P. 2d 365; Gorzeman v. Artz, 13 Cal. App. 2d 660, 57 P. 2d 550; Eades v. Capital Materials Co., 121 F. 2d 72; Eaton v. S. S. Pierce Co., 288 Mass. 323, 192 N. E. 831.
■ The amount of the verdict was $6,500. Appellant says it is excessive. Decedent was sixty years of age at the time of his death. His expectancy according to the American Experience Table was 13.47 years. He was strong, healthy and a good workman. He had
It is well-settled doctrine that the amount of recovery in cases of this character is limited to the financial loss sustained by the plaintiff. (Pattrick v. Riggs, 148 Kan. 741, 84 P. 2d 840.) It was well said in the early case of Union Pacific Rly. Co. v. Milliken, 8 Kan. 647, that, “No verdict is right which more than compensates; none which fails to compensate.” The difficulty encountered in fixing such compensation is not with this recognized principle, but with its application to varying facts and circumstances.
On the basis of $25.54 per week decedent if regularly employed during his entire life expectancy would have earned the sum of $17,-889.23. At his age it, of course, would be speculative and conjectural to assume decedent’s health and vigor would continue unabated during the remainder of his life. Expectancy tables are merely one of the various aids employed in the judicial process of arriving at fair compensation. See Young v. Kansas City Public Service Co., 156 Kan. 624, 135 P. 2d 551, in which the various guides for measurement of compensation are discussed at length and numerous cases upon the subject are collated. We do not deem it necessary to repeat what so recently was said in that case or in other cases upon the subject. The jury in the instant case did not allow compensation at decedent’s present basis of pay for the entire period of expectancy. When total funeral expenses are deducted from the $6,500 verdict the next balance is approximately one-third of what the verdict;
We think the judgment should be affirmed. It is so ordered.