Ellis v. Union Pacific Railroad , 232 Kan. 194 ( 1982 )

The opinion of the court was delivered by

Schroeder, C.J.:

In this comparative negligence action the original opinion affirming the trial court was filed April 3, 1982. Thereafter, a “MOTION FOR REHEARING OR MODIFICATION” was filed April 22, 1982, by the Union Pacific Railroad. After response thereto by the city of Onaga, Mill Creek Township and Pottawatomie County, and the filing of a memorandum brief of amicus curiae, Insurance Company of North America, in support of the motion for rehearing, and the city of Onaga’s reply thereto, the court on July 1, 1982, granted the motion for rehearing and scheduled oral arguments for the week of October 18, 1982. In its order the court requested all parties, amici curiae Insurance Company of North America, Kansas Trial Lawyers Association and Kansas Association of Defense Counsel to brief by August 16, 1982, nine specified issues in addition to such other issues each believed necessary for an appropriate rehearing of the appeal. Reply briefs by the parties or amici were to be filed by September 7, 1982.

Prior to rehearing leave was granted for the filing of additional briefs by amici as follows: Kansas Association of Property and Casualty Insurance Companies, Inc., and Arthur W. Douville.

On October 7, 1982, by reason of the illness of Justice Alex M. Fromme of the Kansas Supreme Court, the Honorable William D. Clement, District Judge, Division 2 of the Geary County District Court, was assigned pursuant to the authority vested in the Supreme Court by Article 3, Sec. 6(f) of the Constitution of the State of Kansas to serve temporarily on the Supreme Court in the place of Justice Fromme to participate in the rehearing and ultimate decision of this case.

After fully hearing arguments by counsel for the respective parties on October 20, 1982, and giving due consideration to all briefs filed, the court adheres to its original opinion filed April 3, 1982, affirming the trial court.