Carlson v. Mid-Continent Development Co.

• Decision Date: 06 July 1918
• Docket Number: 21685
• Citation: 103 Kan. 464,173 P. 910
• Parties: CARLSON v. MID-CONTINENT DEVELOPMENT CO.
• Court: Kansas Supreme Court

173 P. 910

103 Kan. 464

CARLSON v. MID-CONTINENT DEVELOPMENT CO.

No. 21685

Supreme Court of Kansas

July 6, 1918

Syllabus

A gas company built its pipe line in a highway more than 12 inches above the ground in such a way as to constitute a nuisance and by reason of the defective construction a horse driven by the plaintiff caught his feet under the pipe, and in struggling to extricate himself overturned the buggy throwing the plaintiff out and injuring him. The pipe line and other property of the defendant passed into the hands of a receiver after the line was built, and was in his possession when the injury was sustained by plaintiff, but had been restored to the company before the trial of the action begun by plaintiff against the company to recover damages for the injury. Held that, the company having negligently created the nuisance which caused the injury, it is liable, although the pipe line was in the control of the receiver when plaintiff suffered the injury.

The building of such a structure was not only negligence, but it was a wrong which rendered the party creating it liable without proof of negligence, and the fact that the court in its instructions placed the burden upon the plaintiff of proving negligence did not materially prejudice the defendant.

The admission of testimony that the receiver moved and buried the pipe line after the accident did not, under the circumstances, constitute prejudicial error.

The refusal of the court to strike out the testimony of a witness upon the alleged grounds that it was contrary to all of the evidence on the question and untrue is not error.

Appeal from District Court, Wyandotte County.

Action by John A. Carlson against the Mid–Continent Development Company. Judgment for plaintiff, and defendant appeals. Affirmed.

William G. Holt and J. K. Cubbison, both of Kansas City, Mo., for appellant.

Thompson, McCanles & Gorsuch, of Kansas City, for appellee.

OPINION

JOHNSTON, C. J.

In an action to recover for personal injuries the plaintiff obtained a judgment against the defendant for $3,000 on account of negligence in constructing and maintaining defendant’s gas pipe upon a public highway. It was alleged that the defendant, which owned and operated a pipe line for conducting gas from its wells to consumers, constructed and maintained a pipe line on and along a public highway about 2 feet above the ground and in such a way as to constitute a nuisance, and that while plaintiff was driving along the highway, observing due care, his horse’s feet were caught under the pipe, throwing down the horse, upsetting the buggy and throwing plaintiff against a barbed wire fence, seriously injuring him. Defendant answered with a denial, a charge of contributory negligence, and an averment that the property assets, and control of the business of the defendant were in the hands of a receiver when the accident occurred, and that therefore it was not liable for the injury. It was shown in the evidence that the road along which the pipe was laid was partly surfaced with macadam, and at the place where plaintiff was injured it was slanting and slippery by reason of a recent rain. The gas pipe mentioned was near the edge of the macadam surface and from a foot to 16 inches above the ground. Just as the plaintiff drove past a steam roller which was standing on the other side of the road and partly upon the macadam portion the horse slipped, his feet going under the gas pipe, and in a plunging effort to extricate himself and get on his feet the buggy was overturned, throwing plaintiff against the barbed wire fence and causing the...