City of Emporia v. Burns

• Decision Date: 10 July 1903
• Docket Number: 13,264
• Citation: 67 Kan. 523,73 P. 94
• Parties: CITY OF EMPORIA v. SARAH BURNS
• Court: Kansas Supreme Court

73 P. 94

67 Kan. 523

CITY OF EMPORIA v. SARAH BURNS

No. 13,264

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Lyon district court; CHARLES B. GRAVES, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CITIES AND CITY OFFICERS--Obstruction of Street. If the disturbed condition of a city telephone and fire-alarm system indicates to the city officials that the fire-alarm wire may be broken and down in the street, it is their duty to investigate the cause of the disturbance to ascertain if the wire constitutes a dangerous obstruction to the use of the street; and notice of a disturbance of the system caused by the fire-alarm wire's being broken and down will be notice of the obstruction of the street.

J Harvey Frith, and Buck & Spencer, for plaintiff in error.

Kellogg & Madden, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

This controversy was before the court for consideration in Burns v. Emporia, 63 Kan. 285, 65 P. 260, where the substantial facts were stated. The case was then remanded for a new trial because the district court had undertaken to determine as matters of law certain questions which should have been submitted to the jury as matters of fact. Those questions related to the subject of notice to the city, actual and constructive, of the dangerous condition of its street. The same subject is again the apple of discord. Upon the second trial, the evidence relating to notice was submitted to the jury, who found the facts against the city, and a careful analysis of the testimony shows it to be sufficient to sustain the verdict.

The source of notice to the city of the fact that the wire was down in the street was a disturbed condition of the telephone and fire-alarm wires connecting the city fire station with the water-works, some two miles distant. It is argued that the wire which caused the injury was used for the sole purpose of communicating alarms of fire; that the city might allow the wire to become so far out of repair as to be utterly worthless for the single purpose for which it was maintained without violating any duty to the plaintiff or to other residents of the city; and that notice of defective fire-alarm service was not notice of an obstructed street. The evidence quite effectively disposes of this argument. Frank Newell, who was in charge of the city's fire-extinguishing apparatus on the day of the accident, testified that after a fire on the afternoon of that day he undertook to communicate with the engineer at the water-works. His examination then proceeded:

"Ques. And at the time you rang him up, you and he ascertained the fact that the wire was down? Ans. Yes, we knew there was something wrong with it; we didn't know the wire was broken in two, only we knew there was a circuit on the fire-alarm wire and the telephone wire.

"Q. That would indicate that it was down? A. Yes, that would indicate that it was down or crossed some place."

Upon cross-examination he further testified:

"Q. When did you have any occasion, after getting through with the fire and getting back, to use that particular wire? A. When we got back from the fire and I put up the team and got things straightened up in the house so that I could leave them, I went up-stairs to ring Bacon up, and I found when we rang the drop at the water-works dropped.

"Q. Then what did you learn? A. We then found out that the wire was either down or crossed some place.

"Q. It didn't work? A. No, it didn't work, nor wouldn't work.

"Q. You were not suspicious that the wire was broken? A. We didn't know; only we knew there was trouble with the fire-alarm wire and it didn't work.

"Q. You knew it had occurred before? A. Yes."

Frank Bacon, the water-works engineer, testified upon cross-examination as follows:

"Q. How far apart on the poles were those wires? That is, how...