Wilson v. Kansas Gas & Electric Co.

744 P.2d 139, 12 Kan. App. 2d 336, 1987 Kan. App. LEXIS 1243
CourtCourt of Appeals of Kansas
DecidedOctober 8, 1987
DocketNo. 59,273
StatusPublished
Cited by2 cases

This text of 744 P.2d 139 (Wilson v. Kansas Gas & Electric Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. Kansas Gas & Electric Co., 744 P.2d 139, 12 Kan. App. 2d 336, 1987 Kan. App. LEXIS 1243 (kanctapp 1987).

Opinion

Carpenter, J.:

Defendants Gary Dale Paxson and Kansas Gas and Electric Company (KG&E) appeal a damage award entered in a wrongful death and survival action maintained on behalf of seven children who sought recovery for the death of their mother and her unborn child.

[337]*337On November 3, 1982, an automobile driven by defendant Paxson struck Virginia Givens as she was crossing Harry Street near its intersection with Pinecrest in Wichita. She did not survive the accident. Virginia Givens was pregnant, and the child she was carrying was stillborn.

Defendant Paxson had neglected to turn on his headlights after leaving a well-lighted parking lot. When he arrived at a section of Harry Street where some street lights were out, he realized his headlights were not on, and was reaching to turn them on when he hit Givens.

Givens had seven children in addition to her unborn child, but her parental rights to such children had been severed several years before the accident.

The administrator of the estates of Virginia Givens and Baby Boy Givens filed suit against Paxson, KG&E, and the City of Wichita, alleging that Paxson had been negligent in driving his car without his headlights on, and that KG&E and the City of Wichita were negligent in failing to maintain the street lights at the scene of the accident.

Eddie Ward intervened in the action, claiming to be the common-law husband of Virginia Givens and the father of Baby Boy Givens. The seven surviving children of Virginia Givens also intervened through a guardian ad litem.

A jury trial was held in September 1985. Plaintiffs moved to dismiss the City of Wichita from the lawsuit, which motion was granted by the court. The trial court ruled as a matter of law that Baby Boy Givens did not suffer conscious pain and suffering. The jury found that Virginia Givens was killed instantly and also determined that Eddie Ward was neither the common-law husband of Virginia Givens nor the father of Baby Boy Givens. The jury found KG&E 37% at fault, Paxson 37% at fault, and Givens 26% at fault and awarded $25,000 in nonpecuniary damages to the seven surviving children as the heirs of Virginia Givens, and $25,000 in nonpecuniary damages to the seven children as heirs of Baby Boy Givens. After assessing Givens’ 26% fault, this resulted in judgments against KG&E of $9,250 in favor of the seven children as heirs of Virginia Givens, and $9,250 in favor of the seven children as heirs of Baby Boy Givens; and against Gary Dale Paxson of $9,250 in favor of the seven children as heirs of [338]*338Virginia Givens, and $9,250 in favor of the seven children as heirs of Baby Boy Givens.

When plaintiffs rested, KG&E moved for directed verdict on the issue of liability, premised upon the failure to prove any legal duty of KG&E to maintain street lights within the City of Wichita, since plaintiffs had not offered the existing street lighting agreement between KG&E and the City of Wichita in their case in chief. This motion was denied by the court, and KG&E elected to present evidence in its case in chief. In its case, KG&E called its Wichita Regional Manager to testify. During his testimony, plaintiffs first offered the street lighting agreement, which was admitted. At the conclusion of all the evidence, KG&E renewed its motion for directed verdict, which was again denied.

On appeal, KG&E'asserts that the trial court erred in denying its motion for directed verdict when plaintiffs failed to present evidence in their case establishing the legal duty of KG&E to maintain street lights in the City of Wichita. However, the rule in this jurisdiction is that a party waives his right to a directed verdict if such motion is made at the close of his opponent’s case and thereafter he introduces evidence in his own behalf. He may renew his motion at the close of all the evidence, but such renewed motion will be judged in the light of the case as it stands at that time, even though the court may have erred in denying the initial motion. This error is cured if subsequent evidence introduced during the moving party’s case in chief repairs the defects of his opponent’s case. Abston v. Medora Grain, Inc., 206 Kan. 727, 730, 482 P.2d 692 (1971).

KG&E argues that, in order to establish a legal duty to maintain street lights, it would have been necessary for the street lighting agreement between the City and KG&E to be admitted into evidence. However, such omission in plaintiffs’ case was cured when the agreement was admitted without objection during the testimony of KG&E’s Wichita Regional Manager who was called as a witness by KG&E. Accordingly, when KG&E elected to present evidence in its case in chief, it waived any claim of error by the trial court in denying its motion for directed verdict at the close of plaintiffs’ case.

KG&E also contends that the trial court erred in allowing the issue of its negligence to go to the jury for the reason that there [339]*339was no evidence' introduced which would establish that it departed from the proper standard of care, i.e., that care which would be exercised by prudent persons engaged in the industry. Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 622-23, 706 P.2d 476 (1985). We note in passing that, in our scrutiny of the record, we find no objection on this specific ground by KG&E to the instruction on negligence given by the trial court.

Although KG&E moved for directed verdict on the issue of negligence, it would seem that KG&E did not fully articulate the sufficiency of evidence issue in the context of the standard in Mastín. We agree that this is the proper standard. Nevertheless, the record contains the testimony of KG&E’s Wichita Regional Manager, Don Elliott, who stated that it was KG&E’s policy to give widespread street lighting outages priority over individual lights. He also testified that KG&E was aware that the street lights were out early Monday morning preceding the Wednesday night accident, and that the lights were repaired the first time on that Monday. He further testified that KG&E was notified on Tuesday evening that the lights were out again and that a crew was dispatched on Wednesday to repair the lights, but that the repairs were not completed. The accident occurred Wednesday night, November 3, 1982. Elliott was unable to explain why the crew did not stay at the scene on Wednesday until the lights were fixed. The lights were not repaired until Thursday, November 4, 1982. There was also evidence that in excess of 70 street lights were off on both sides of Harry Street between Oliver and Woodlawn Streets, and that the accident scene was extremely dark.

We conclude, therefore, that there was sufficient evidence of KG&E’s negligence for the submission of such issue to the jury.

Defendant Paxson moved for directed verdict on separate grounds that (1) the seven children of Virginia Givens cannot recover as collateral heirs for the wrongful death of Baby Boy Givens as a matter of law, and (2) there was insufficient evidence of any loss or damages suffered by the seven children as a result of the deaths of Virginia Givens and Baby Boy Givens.

K.S.A. 60-1902

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Bluebook (online)
744 P.2d 139, 12 Kan. App. 2d 336, 1987 Kan. App. LEXIS 1243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-kansas-gas-electric-co-kanctapp-1987.