Biby v. City of Wichita

• Decision Date: 04 May 1940
• Docket Number: 34737.
• Parties: BIBY v. CITY OF WICHITA.
• Court: Kansas Supreme Court

101 P.2d 919

151 Kan. 981

BIBY v. CITY OF WICHITA.

No. 34737.

Supreme Court of Kansas

May 4, 1940

Syllabus by the Court.

The Supreme Court rule requiring an appellant to include a specification of errors, separately set forth and numbered in the abstract, should be complied with, to inform an appellee definitely as to the precise grounds on which reversal or modification is sought, and to direct the Supreme Court's attention, with no uncertainty, to the alleged errors which the appellant contends have prejudiced his rights. Supreme Court Rules, rule 5.

A slight defect or obstruction, an inconsiderable unevenness or a variance in the surface level of a public sidewalk whether existing in the sidewalk itself, or caused by an object lying on the sidewalk, is not sufficient to establish actionable negligence on the part of a city in the construction or maintenance of the sidewalk.

A steel gutter plate, one-quarter of an inch thick, lying on public sidewalk, was not such a defect or obstruction as would render city liable to pedestrian for injuries allegedly sustained in fall caused when pedestrian caught her heel on the steel plate.

1. In an action against a city to recover for personal injuries, a slight defect or obstruction, an inconsiderable unevenness or variance in the surface level of a public sidewalk, whether existing in the sidewalk itself, or caused by an object lying upon the sidewalk, is not sufficient to establish actionable negligence in the construction or maintenance of the sidewalk.

2. The record is examined in an action for damages against a city wherein the plaintiff was alleged to have suffered injuries in a fall caused by catching her heel on the edge of a steel plate, one-quarter of an inch thick, lying upon a public sidewalk, and it is held that under the facts and circumstances stated in the opinion, the rule of law stated in the above paragraph is applicable and the city's demurrer to the plaintiff's evidence was properly sustained.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Sadie Biby against the City of Wichita and others to recover damages for personal injuries allegedly sustained as the result of a fall on a public sidewalk. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Clarence R. Sowers and Claude E. Sowers, both of Wichita, for appellant.

Vincent F. Hiebsch and K. W. Pringle, both of Wichita, for appellee.

HOCH Justice.

This was an action to recover damages for personal injuries. The plaintiff alleged that she was injured as the result of a fall on a public sidewalk in Wichita, her fall being caused by catching her heel on the edge of a flat piece of steel which was lying loose upon the sidewalk.

The original parties defendant were the owner of the building which abutted the sidewalk, the lessee and occupant of the building, and the City of Wichita. Prior to trial the plaintiff agreed to withdraw the action as against the lessee and occupant. At the close of plaintiff's evidence, the court sustained separate demurrers by the owner of the building and by the City of Wichita. Appeals were taken as to both defendants, but the appeal as to the owner of the building was subsequently dismissed. The appeal now before us is from the order sustaining the city's demurrer.

We are met at the outset by the contention of appellee that no question is presented for review owing to the failure of appellant to include in her abstract a "specification of errors complained of, separately set forth and numbered" as required by rule five of this court. It may be frankly admitted that there has been a good deal of leniency--possibly too much--in the enforcement of this rule. That fact supplies the only apparent basis for complaint if the instant appeal were dismissed for failure to comply with the rule. The rule is based on sound considerations. Appellees have a right to be definitely informed as to the precise grounds upon which reversal or modification is sought. More than that, it is no part of the duty of courts of review to search out errors in a record. It is for the complaining parties to direct the court's attention--with no uncertainty--to the alleged errors which they contend have prejudiced their rights. In the instant case the appellant urges that while no specification of errors appears in the abstract, her brief clearly indicates that the only issue raised is whether the court erred in sustaining the city's demurrer to her evidence, and that, therefore, the failure to comply with the rule has not prejudiced the interests of the appellee. It is not, however, for appellants to decide whether harm will result from non-compliance. With considerable hesitancy, we again overlook the omission for the reason that the appellee appears to have fully understood the issue raised by the appeal. We will consider the case on its merits. It may be well to say here, however, that the next appellants who disregard the rule may not fare so well. The court may be forced to the conclusion that the only way to impress counsel with the importance of compliance is to rigidly enforce the rule.

On the evening of July 9, 1938, the plaintiff Sadie Biby, her husband John Biby, and her niece Nora Cole, parked the Biby car on South Topeka Avenue in Wichita and walked north on the east side of Topeka Avenue past the building owned by D. R Lauck and occupied by The Yingling Chevrolet Company as lessee. This building is located on the southeast corner of Topeka and English Avenues. Traversing the sidewalk and running east and west was a drain gutter constructed to take care of water from a drain pipe which ran from the roof down the west side of the building. This drain gutter was constructed in the concrete sidewalk and was covered by a steel plate which was described by the City Engineer to be approximately one-fourth inch thick, ten and one-half inches wide, and twelve feet long; the weight of the steel plate was variously estimated by witnesses to be between sixty and one hundred twenty-five pounds. The plaintiff and those accompanying her crossed this steel plate on their way north at about 7 or 7:30 P. M., but took no notice of it. After doing some shopping which took them about an hour, they returned southward along the same sidewalk on their way to their car. It was still "fairly light", "amply light to see whatever there was to see on the walk." They were on the inside portion of the walk comparatively near the building. As they passed in front of the building the plaintiff suddenly stumbled and fell to the ground with resulting injuries alleged in the petition. The nature and extent of the alleged injuries, not being in issue here, need not be recited.

The issue presented is whether the evidence was sufficient to require the question of the city's liability to be submitted to the jury. The question being raised by demurrer, the testimony must be considered in the light most favorable to the plaintiff, and every reasonable inference indulged in her behalf.

The drain gutter was constructed in 1927 together with the sidewalk under a permit issued by the city to the owner of the building. It was built and maintained by the owner of the building. The construction of the drain gutter, covered by the steel plate, was of an approved type. The City Engineer called as a witness by the plaintiff, testified that the form of construction used was "the best type,"--"the most satisfactory and generally continuing safe type" which has been used for the purpose of carrying water from the down spout of a building across the sidewalk to the street space from the curb, in the absence of a storm sewer. He further testified that the work on this particular drain "was cleared as having been completed and inspected on July 27, 1927." Sometime prior to the instant accident the concrete curbing at the street line had become broken at the outer end of the drain gutter, thus exposing the end of the metal cover. There was testimony that on various occasions the steel plate had been found knocked out of place by cars which had been backed against it at the curb....