Blankenship v. Kansas City
| Decision Date | 10 April 1943 |
| Docket Number | 35675. |
| Citation | 156 Kan. 607,135 P.2d 538 |
| Parties | BLANKENSHIP v. KANSAS CITY. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A city's duty in respect to sidewalk is to maintain such sidewalk in a reasonably safe condition for the use of pedestrians, and the city is not an "insurer" of the safety of persons using its sidewalks.
A slight defect or obstruction or inconsiderable unevenness or variance in the surface of a sidewalk is insufficient to establish liability of the city for injuries to pedestrians.
Negligence is never presumed, and pedestrian alleging injury through failure of city to maintain sidewalk in safe condition had burden of proving alleged negligence.
Where it is claimed that sidewalk became so defective as to be unsafe for use, plaintiff must show not only the unsafe defect but that the city had actual or constructive notice thereof and a reasonable time in which to repair it before injury.
Which description of sidewalk where accident happened was correct was for jury and trial court to determine, but whether under any description the city was liable for alleged negligence in maintaining sidewalk in unsafe condition was for appellate court.
In action by pedestrian against city for injury resulting from fall on sidewalk allegedly maintained in unsafe condition evidence was insufficient for jury where it showed either a depression in sidewalk of not more than two inches in depth of which the city had notice, or a hole approximately 1 1/2 feet wide and two or three feet long, and six to eight inches deep, of which the city had no notice.
When one using a sidewalk does not know that it is out of repair or otherwise dangerous, he is not guilty of negligence for assuming it to be reasonably safe; but when he knows sidewalk is out of repair, or is dangerous to use, he must use due care for his own safety.
1. The duty of a municipal corporation with respect to sidewalks is to maintain such walks in a reasonably safe condition for the use of pedestrians. Slight defects or obstructions, or inconsiderable unevenness or variance in the surface of the sidewalks, are insufficient to establish liability of the city.
2. Where plaintiff fell on the sidewalk and sued to recover damages on the ground that the city was negligent in not maintaining the sidewalk in a reasonably safe condition he was bound to show, not only the unsafe condition of the walk but that the city had actual or constructive notice of such condition and a reasonable time in which to repair it before the occurrence of the injury.
Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.
Action by Blanche M. Blankenship against the City of Kansas City Kansas, for personal injuries sustained from a fall on sidewalk. From a judgment for plaintiff for $1,500, the defendant appeals.
Reversed and remanded with directions.
Alton H. Skinner, City Atty., and Edwin A. Schalker, William H Towers, William H. McHale, Joseph A. Lynch, and James H. Barnes, Deputy City Attys., all of Kansas City, on the brief, for appellant.
Thomas H. Finigan, of Kansas City, on the brief, for appellee.
This was an action for damages for personal injuries sustained by plaintiff from a fall on a sidewalk of the city alleged to have resulted from a hole in the sidewalk which defendant negligently had permitted to remain there. The jury answered special questions and returned a verdict for plaintiff for $1,500, on which judgment was rendered. Defendant has appealed.
The facts, concerning which there is no dispute, may be stated as follows: Orville Avenue is a paved east and west street of Kansas City and is intersected by Tenth street. The sidewalks on the north and on the south side of Orville Avenue were laid with brick. At the corner south of Orville and west of Tenth street there is a two-story brick store building fronting east, the north side of which extends west along the south side of Orville Avenue. In the rear part of the building the first floor was used by cleaners, and the second floor for a residence and at the time in question this was occupied by William F. Deckman and his wife. At the back of the brick building on the west is a frame room or entrance-way from which a stairway leads to the second floor. West of that is a space, perhaps fifteen feet, where there is no building, and then there are garages. The sidewalk inclines downward to the east. On the north side of Orville, and about a block west of Tenth, is the Lowell grade school, with school grounds and a smaller building on the east portion of the grounds known as "The Annex," which at the time in question was being used by the clerical staff of the WPA. Plaintiff lived at Piper, about ten miles from Kansas City, and for about eight months had been employed on the clerical staff of the WPA at the Annex of Lowell school. Ordinarily she ate her lunch at the building where she worked, but occasionally had some errand that took her over on Tenth street. On January 26, 1939, at the noon hour, she started to go to a grocery store. It was a clear, wintry day, with a temperature somewhat above freezing. She walked east on the sidewalk on the north side of Orville to the alley, about 150 feet west of Tenth street, then diagonally southeast across Orville, stepped up on the curb and the two or three steps across the parking and onto the sidewalk, and fell in such a way that her right leg was broken near the ankle. The place where she fell was a few feet west of the entrance to the upstairs apartment occupied by the Deckmans. Some school children on the street notified Miss Smith, principal of Lowell school, who came to the scene. Mrs. Deckman saw plaintiff soon after she fell and went to her assistance, and a Mr. Ressel, who was driving a taxicab east on Orville, saw her fall, stopped and took plaintiff to the hospital, accompanied by Miss Smith. Plaintiff's injuries were properly treated, but she was not able to return to work until fall. We need discuss her injuries no further since there is no contention that the verdict is excessive if plaintiff is entitled to recover.
The controversy in the case was whether there was a defect in the street which caused plaintiff to fall. In her petition plaintiff had alleged that the street was defective in that several bricks had been removed over a space a foot and a half wide to two or three feet long and a hole had been worn in the place from six to ten inches deep. In its answer defendant specifically denied that allegation, alleged that at the time of plaintiff's accident the sidewalk and street near it were covered with snow and ice, a condition brought about by the weather over which defendant had no control, and that if plaintiff fell and was injured as she alleged it was brought about by her own lack of due care. No reply was filed.
Plaintiff testified that as she walked east on the north side of Orville Avenue the sidewalk was perfectly dry; that as she walked diagonally across the street and approached the curbing on the south side there was some snow and ice, which were melting a little, near the curb and on the parking and sidewalk; that "in walking along, I didn't keep my eyes glued to the sidewalk"; that after stepping up on the curb she took two steps on the parking and the next step on the sidewalk and fell immediately; that she did not see the hole in the sidewalk, or she would not have stepped into it; that her injury caused intense pain; that while lying there on the walk, before persons came to help her up, she looked back and saw where she stepped there was a large hole, perhaps a foot and a half wide north and south and two to three feet long east and west, with rough bricks sticking up about the edges, and it looked to her, as she was lying there, that it was six to eight inches deep. Later she testified that as she walked across the street and stepped up on the curbing and across the parking and onto the sidewalk she was watching where she was walking, looking down and paying attention to where she stepped; that she did not see the hole in the walk; that it was partly covered by "snow and debris." The character of the debris and the amount of it were not stated.
William F....
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