Atchison v. Plunkett

• Decision Date: 01 January 1899
• Docket Number: 451. [*]
• Citation: 8 Kan.App. 308,55 P. 677
• Parties: DAVID ATCHISON v. ISAAC PLUNKETT
• Court: Kansas Court of Appeals

55 P. 677

8 Kan.App. 308

DAVID ATCHISON v. ISAAC PLUNKETT

No. 451. ^[*]

Court of Appeals of Kansas, Northern Department

January 1, 1899

Opinion Filed January 4, 1899.

Error from Leavenworth district court; LOUIS A. MYERS, judge. Affirmed.

Judgment affirmed.

J. H Gillpatrick, and A. E. Dempsey, for plaintiff in error.

J. C Petherbridge, and Baker, Hook & Atwood, for defendant in error.

OPINION

MAHAN, P. J.:

Defendant in error obtained judgment against the plaintiff in error in the district court of Leavenworth county for damages for personal injuries sustained by the defendant in error by the falling of a stone suspended by the plaintiff in error upon a beam attached to his ice-house and extending over a street in the city of Leavenworth, which stone fell from the beam upon the defendant in error, while he was standing in the street near the ice-house of the plaintiff in error. There was a verdict for $ 800. Upon the hearing of the motion for a new trial defendant in error voluntarily remitted $ 400, and judgment was entered for him for that sum.

It is contended under the first assignment of error that the court erred in sustaining the plaintiff's objection to questions addressed to witnesses Kirmeyer and Kasper as to what defendant in error had been doing about the ice-house on former occasions. Plaintiff in error has no ground for complaint on this score. The court was exceedingly liberal with him, allowing him great latitude both in the examination of his own witnesses and in the cross-examination of those of the plaintiff. It was immaterial in what the plaintiff was engaged while at the ice-house of the defendant upon former occasions, and the questions and any possible answers that might have been made thereto would have thrown no light on the issues being tried by the court. They were irrelevant and the objection was properly sustained.

The first contention under the second assignment of error is that the court erroneously gave the first instruction to the jury, to the effect that if the defendant placed a dangerous obstruction over the highway in violation of law he was responsible to any one lawfully in the street for any damages sustained by reason of such unlawful obstruction in the street. The ground of the contention is that there was no evidence that the obstruction, or the rock which fell therefrom, was over any part of the highway. In this, counsel for plaintiff in error are mistaken. Not only was the evidence on the part of the plaintiff sufficient to establish that fact, but the defendant himself admitted upon his cross-examination that such was the fact.

Under this assignment plaintiff in error next contends that it was error for the court to give instruction No. 2, to the effect that the law casts upon owners of buildings abutting on streets the duty of preventing their buildings from becoming in any way dangerous to persons lawfully passing in the highway, and if a failure in this respect results in damage, it is prima facie evidence of negligence. This instruction was applicable to one phase of the case. If, as the defendant contended in his answer and upon the trial, it should have appeared to the jury that the obstruction was not over the highway but immediately upon the line thereof, this instruction would have been applicable; and there is no question about the correctness of the principle enunciated therein. Plaintiff in error contends that the burden always is on the plaintiff to show that the defendant was negligent. This is true. But when the plaintiff has shown that he was injured by some material -- timber, stone, or other matter -- falling from the building upon him while in the street, there is prima facie negligence. (Mullen v. St. John, 57 N.Y. 567.)

Plaintiff in error also contends under this...