Abbott v. Board of County Com’rs

• Decision Date: 06 March 1915
• Docket Number: 19338
• Citation: 94 Kan. 553,146 P. 998
• Parties: ABBOTT v. BOARD OF COUNTY COM’RS.
• Court: Kansas Supreme Court

146 P. 998

94 Kan. 553

ABBOTT v. BOARD OF COUNTY COM’RS.

No. 19338

Supreme Court of Kansas

March 6, 1915

Syllabus

The evidence examined, and held, that the special findings and general verdict of the jury are sustained with respect to the following matters:

A number of feet of filling was made between the abutment of a bridge and the bank of the stream spanned by the bridge. Such filling was necessary to connect the bridge with the highway and make it accessible from the highway, and constituted an approach, forming a part of the bridge.

The location and construction of the bridge were such that it was defective for want of a guard rail at its northeast corner to protect travelers on the highway from missing the entrance to the bridge and plunging over the bank of the stream.

The chairman of the board of county commissioners had notice of such defect, derived from knowledge of the conditions for more than five days before the occurrence of the casualty forming the subject of the action.

An automobile driver, who was driving his car in the nighttime at the rate of about 25 miles per hour, and who missed the bridge and was precipitated over the bank of the stream and killed, was not guilty of contributory negligence.

Appeal from District Court, Wyandotte County.

Action by Carrie M. Abbott, administratrix, against the Board of County Commissioners. From a judgment for plaintiff defendant appeals. Affirmed.

Keplinger & Trickett, of Kansas City, Kan., for appellant.

Angevine, Cubbison & Holt, of Kansas City, Kan., and Bird & Pope, of Kansas City, Mo., for appellee.

OPINION

BURCH, J.

The action was one for damages resulting from the death of the driver of an automobile, occasioned by a defective bridge. The plaintiff recovered, and the defendant appeals.

The bridge spans Mission creek, between Edwardsville and Bonner Springs. The bridge is 40 feet long, and is in line with the roadway to the west, but not to the east. The roadway leading to the bridge from the east is generally 40 feet wide, 16 feet of which is macadamized. Within 20 feet of the bridge the roadway narrows down to the width of the bridge, which is 14 feet. The traveled portion of the road includes, not only the part macadamized, but level ground on each side of the macadam, and when snow is on the ground the surfaced and unsurfaced portions are indistinguishable. An automobile driven westward toward the bridge along the north side of the road would, if it continued in a straight line, miss the bridge.

The deceased conducted an auto livery business at Bonner Springs. About 9 o’clock on the evening of January 5, 1913, he received a call from Edwardsville to go to that place with an automobile, and from there take two young men and two young women to Bonner Springs to catch a train leaving Bonner Springs at 9:45. The distance between the two towns is about 3 miles. As the deceased with his passengers approached the bridge from the east on his return to Bonner Springs, he was driving at the rate of about 25 miles per hour. There was no moon, the wind was blowing, it was snowing a little, and the ground was covered with snow. He drove in a straight line along the north side of the road, missed the bridge, except that the left rear wheel of the automobile struck the north girder of the bridge, and went over the embankment to his death.

The petition charged negligence in failing to pro vide a suitable and sufficient approach to the bridge and guard rails at the ends and sides to act as a warning to travelers nearing the bridge, particularly in the nighttime, indicate the location of the bridge, and enable travelers to see it, so that they would not miss it and be precipitated into the creek. The court instructed the jury that an approach is something connecting the bridge proper with the highway, making the bridge accessible, from the highway, and so submitted the cause that the existence of an approach in this sense was material to the plaintiff’s cause of action. The defendant says the evidence shows that the moment a vehicle going east leaves the bridge it is upon natural ground, which had been the roadbed for years before the bridge was erected. The jury returned the following findings of fact on this subject:

"Q. 1. Was there any filling made at any time at the east end of the bridge, except the back-filling around the abutment?

Answer. Yes."

"Q. 3. In about 1904 or 1905, when the bridge was moved to the east and stone abutments were put under it, was any approach built or work done on the road immediately east of the bridge, except back-filling around the abutment?

Answer. Yes."

"Q. 5. Did the county build or construct any approach at the east end of this bridge?

Answer. Yes."

There was evidence sustaining the defendant’s view, but a number of witnesses who claimed to be familiar with the facts gave testimony supporting the findings of the jury.

Some confusion results from the use of the word "fill" by different witnesses. It fairly appears that, when the bridge was reconstructed, the surface of the ground east of the bridge was higher than the bridge, and was graded down to the same level as the bridge; the earth removed being used to make a fill of considerable length at the west end of the bridge. There was clear evidence, however, that when the east abutment was constructed it was set some distance, the estimates vary from a few feet to several feet, from the east bank of the stream, and the space between the abutment and the bank was filled in. This filling constituted an approach. In the defendant’s reply brief it is said:

"The abutment was 8 or 10 feet wide at the bottom. The excavation therefore was necessarily some wider, so as to leave room for placing the foundation stones. The abutment at the top was 2 feet wide. Consequently, when the abutment was complete, there had to be some filling in against the land side of the abutment."

Accepting this statement as true, the filling constituted an approach.

In this case the existence of a very small approach is sufficient to satisfy the requirement of the instruction, because the petition was interpreted too rigidly against the plaintiff. It is not necessary to quote the allegations of the petition here, but they are open to the interpretation that guard rails as appurtenances to the bridge itself were necessary to make the bridge a proper structure, and, whether or not an...