6 P. 893 (Kan. 1885), City of Emporia v. Schmidling

Citation:6 P. 893, 33 Kan. 485
Opinion Judge:JOHNSTON, J.:
Party Name:THE CITY OF EMPORIA v. MARIA L. SCHMIDLING
Attorney:J. Harvey Firth, and J. Jay Buck, for plaintiff in error. Peyton, Sanders & Peyton, for defendant in error.
Judge Panel:JOHNSTON, J. All the Justices concurring.
Case Date:May 08, 1885
Court:Supreme Court of Kansas
 
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Page 893

6 P. 893 (Kan. 1885)

33 Kan. 485

THE CITY OF EMPORIA

v.

MARIA L. SCHMIDLING

Supreme Court of Kansas

May 8, 1885

Error from Lyon District Court.

ACTION by Schmidling against The City of Emporia, to recover for personal injuries resulting from a defective sidewalk. Trial at the March Term, 1884, and judgment for the plaintiff for $ 1,000. The City brings the case here. The opinion states the material facts.

Judgment affirmed.

J. Harvey Firth, and J. Jay Buck, for plaintiff in error.

Peyton, Sanders & Peyton, for defendant in error.

JOHNSTON, J. All the Justices concurring.

OPINION

[33 Kan. 486] JOHNSTON, J.:

Maria L. Schmidling brought an action in the district court of Lyon county against the city of Emporia, to recover for personal injuries resulting from a defective sidewalk on one of the streets within the corporate limits of that city. It appears that on the 19th of July, 1883, as the plaintiff was traveling over the sidewalk on the east side of Merchants street, a loose board which formed a part of the walk was stepped upon by another person, one end of which tipped up and was thrown suddenly and violently against the plaintiff's foot and ankle, bruising and spraining it badly. She alleged and claimed that the sidewalk had been out of repair for a considerable time prior to the accident, and that the city had knowingly and negligently permitted it to remain out of repair, and that by reason of its condition, and not through any fault of her own, or negligence on the part of the person who stepped upon the loose board that was thrown against her, but only because of the negligence of the city, she was injured. For this injury, and for the expense incurred for physicians and nurses, as well as for loss of time, she asked damages. The cause was tried by a jury, and verdict and judgment were given in favor of the plaintiff for $ 1,000. The city, alleging error, brings the case here for review.

It is first complained that there was error in overruling the motion made by the counsel for the city to require the plaintiff to make her petition more definite and certain. Without [33 Kan. 487] reproducing the petition here, or entering upon a discussion of its allegations, we deem it only necessary to remark, that while it might with propriety have been more elaborate and precise in some respects, yet it was...

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