Cope v. Kansas Power & Light Co. ( 1964 )

Wertz, J.

(dissenting): In dissenting, I wish to set forth briefly my views wherein I differ with the majority opinion.

First, in this action plaintiff sought damages alleged to have resulted from defendant’s negligence and gross and wanton conduct. Defendant pleaded contributory negligence on the part of the plaintiff. This is the kind of action in which each party is entitled to a trial by jury as a matter of right and it should not be converted into a trial by the court.

No useful purpose would be gained by setting forth a resumé of the evidence indicating gross and wanton conduct on the part of the defendant. The record is replete with evidence that the defendant was cognizant at all times of the operations about and under its high-voltage power line. Only three days before the accident complained of defendant’s engineer was on and about the premises and observed the heavy machinery about and under its wires. Also there was evidence a telephone call had been made to the defendant company with reference to the close proximity of its line to the work being done.

The current carried in a power line is not only deadly, but the ordinary person has no means of knowing whether any particular wire is carrying a deadly current or is harmless. Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. The company, however, which uses such a dangerous agent, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them. (Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P. 2d 702.)

Defendant interposed a demurrer to the plaintiff’s evidence on the ground the evidence failed to show the defendant guilty of any act of gross and wanton conduct. The trial court at first overruled defendant’s demurrer to plaintiff’s evidence on gross and wanton conduct, but on the following day the court, apparently usurping the function of the jury by weighing the evidence, reversed its ruling and sustained the demurrer. In so doing I am of the opinion the trial court erred.

Second, both the plaintiff and defendant requested specific instructions. The defendant requested the court to give the instruction set out in the case of Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 695, 85 P. 2d 15, as quoted in the majority opinion. Absent the competent italicized portion of the requested instruction, which omission was not supplied by any other instruction given to the jury, the trial court in fact told the jury, in giving instruction No. 13, that if the plaintiff had two courses of conduct open, he was to exercise ordinary care in choosing which course to pursue, and if he pursued a course which was dangerous rather than one which was safe or even less dangerous he would be guilty of negligence. Certainly this instruction had its impact on the jury’s findings Nos. 3 and 4, which found the plaintiff guilty of negligence in that he did not exercise ordinary care for his own safety.

I am in accord with the majority opinion that the instruction given had no application to the facts in the instant case. The question was not whether plaintiff could have done his work safely in some manner other than that in which he did do it, but whether under the facts and circumstances plaintiff used due care in the manner in which he did it. The question is, Was plaintiff’s conduct that of an ordinary, reasonable man under the surrounding facts and circumstances? The uncontradicted testimony was that the plaintiff had no responsibility to make adjustments on the shovel. He was not the operator nor was he in charge of that equipment. There was not a scintilla of evidence that he had any authority either to operate or direct the movement of the shovel. Whether the plaintiff was negligent in the performance of the duty assigned to him must be determined in the light of the situation in which he was placed. If his act was such as a reasonably prudent man would have done, it was not negligent, although some other course would have been absolutely safe.

In view of instruction No. 13 as given, the plaintiff requested the trial court to instruct the jury, in substance, that the fact plaintiff may have had some knowledge of the danger of lifting the wires with a stick did not constitute contributory negligence if in the exercise of reasonable care he did not have a full appreciation of the risk involved in doing the act, even though he did have a comprehension of some risk, and that where one exposes himself to a known danger and injury results, it is not in every instance he is denied recovery but only where under like circumstances an ordinarily prudent person would not subject himself to so obvious and imminent a danger.

Plaintiff, in making his request for the two instructions, invited the court’s attention to Wainscott v. Carlson Construction Co., 179 Kan. 410, 413, 295 P. 2d 649, and Nave v. Hixenbaugh, 180 Kan. 370, 377, 304 P. 2d 482, wherein this court stated:

“It is not in every instance where one exposes himself to a known danger and injury results that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence -under like circumstances would not subject himself to it. Danger may lurk within every defective condition, and yet may not be of such character that men of ordinary prudence would hesitate to expose themselves thereto. The defect and danger therefrom must be such that knowledge, or imputed knowledge thereof, would cause an ordinarily prudent person to appreciate the risk therefrom. The principal is too well established to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. Mere knowledge of the offending instrumentality does not constitute contributory negligence as a matter of law. . . .”

Plaintiff’s two requested instructions are sustained by many decisions of this court. For a few of the most recent cases, in addition to those above cited, see Shufelberger v. Worden, 189 Kan. 379, 369 P. 2d 382; Weaver v. Laundon, 186 Kan. 551, 557, 558, 352 P. 2d 412; Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P. 2d 702; Webster v. Kansas Power & Light Co., 182 Kan. 626, 629, 323 P. 2d 643.

The court refused to give plaintiff’s requested instructions or the substance thereof, although the record is replete with evidence to justify the court’s giving the requests in substance. A party is entitled to have the trial court give an instruction to the jury which is essential to his theory of the case where there is sufficient evidence to support such theory. (Natanson v. Kline, 186 Kan. 393, 412, 350 P. 2d 1093; Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213.) It is incumbent upon the trial court in the performance of his duty to instruct the jury on the law applicable to the theories of both parties to the action insofar as such theories are supported by competent evidence. To instruct on one litigant’s theory of the case and refuse to instruct on the theory of the other litigant when supported by evidence constitutes prejudicial error.

Not only did the court err in giving the bobtailed instruction taken from the Jones case but under the evidence in the case erred in refusing to give in substance plaintiff’s requested instructions which were supported both by the evidence and by the decisions of this court.

I cannot join in the view of the majority that the instruction given and the two refused did not constitute prejudicial error. I am of the opinion that where it appears probable a misdirection upon a vital matter has affected the verdict of the jury, there seems no course open but to order a new trial, although it cannot be said with absolute certainty that had proper instructions been given a different decision would have been reached. (Triplett v. Feasel, 105 Kan. 179, 182 Pac. 551; Gigoux v. Henderson, 107 Kan. 325, 190 Pac. 1092.)

In conclusion, I am of the opinion the trial court erred in sustaining defendant’s demurrer to the plaintiff’s evidence as to gross and wanton conduct and that it committed prejudicial error in giving instruction No. 13 and in refusing to give the substance of plaintiff’s two requested instructions; and under the circumstances it cannot be said that substantial justice has been done, which means a fair trial to each of the parties, and the rule against reversals for immaterial error does not apply.

The judgment of the trial court should be reversed and a new trial ordered.

Robb, J., concurs in the foregoing dissenting opinion.