City of Emporia v. Schmidling

• Decision Date: 08 May 1885
• Citation: 33 Kan. 485,6 P. 893
• Parties: THE CITY OF EMPORIA v. MARIA L. SCHMIDLING
• Court: Kansas Supreme Court

6 P. 893

33 Kan. 485

THE CITY OF EMPORIA v. MARIA L. SCHMIDLING

Supreme Court of Kansas

May 8, 1885

Error from Lyon District Court.

ACTION by Schmidling against The City of Emporia, to recover for personal injuries resulting from a defective sidewalk. Trial at the March Term, 1884, and judgment for the plaintiff for $ 1,000. The City brings the case here. The opinion states the material facts.

Judgment affirmed.

J Harvey Firth, and J. Jay Buck, for plaintiff in error.

Peyton Sanders & Peyton, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Maria L. Schmidling brought an action in the district court of Lyon county against the city of Emporia, to recover for personal injuries resulting from a defective sidewalk on one of the streets within the corporate limits of that city. It appears that on the 19th of July, 1883, as the plaintiff was traveling over the sidewalk on the east side of Merchants street, a loose board which formed a part of the walk was stepped upon by another person, one end of which tipped up and was thrown suddenly and violently against the plaintiff's foot and ankle, bruising and spraining it badly. She alleged and claimed that the sidewalk had been out of repair for a considerable time prior to the accident, and that the city had knowingly and negligently permitted it to remain out of repair, and that by reason of its condition, and not through any fault of her own, or negligence on the part of the person who stepped upon the loose board that was thrown against her, but only because of the negligence of the city, she was injured. For this injury, and for the expense incurred for physicians and nurses, as well as for loss of time, she asked damages. The cause was tried by a jury, and verdict and judgment were given in favor of the plaintiff for $ 1,000. The city, alleging error, brings the case here for review.

It is first complained that there was error in overruling the motion made by the counsel for the city to require the plaintiff to make her petition more definite and certain. Without reproducing the petition here, or entering upon a discussion of its allegations, we deem it only necessary to remark, that while it might with propriety have been more elaborate and precise in some respects, yet it was sufficiently full and explicit to fairly make known to the defendant the elements of the damages claimed by the plaintiff. An examination of the record satisfies us that the defendant was not prejudiced by the ruling upon this motion.

An exception was taken to the refusal of the court to charge the jury that "if the walk in question was so dangerous as that its condition could be seen at a glance, then that of itself should have put the plaintiff upon her guard, and she cannot recover." This instruction we think was rightly refused. In the first place it is doubtful whether it was pertinent to the facts in the case. It does not appear that the defect in the sidewalk was one which could be seen at a glance by the defendant. That the particular board which did the injury was unfastened and liable to be tipped up, was probably not apparent until it was stepped on by the passer-by. However, there is a more serious objection to the instruction; it expresses the idea that if the plaintiff undertook to pass over the sidewalk with the knowledge that it was defective or dangerous, then that of itself would constitute negligence which would defeat a recovery. This is not the law. Persons are not to be entirely debarred from the use of the streets because they may be out of repair. Frequently a street or sidewalk may be passed over and used with safety even though somewhat defective. Of course a person cannot heedlessly or recklessly walk into danger and hold the city liable for resulting injury. If danger exist and it is known, ordinary prudence would require a greater vigilance and a care corresponding with the danger, to avoid injury. It has been said by this court that "the fact that a person attempts to travel on a street or sidewalk after he has notice that it is unsafe or out of repair, is not necessarily negligence." (Corlett v. City of Leavenworth, 27 Kan. 673; see also City of Osborne v. Hamilton, 29 id. 1; Osage City v. Brown, 27 id. 74.) If to the instruction asked, had been added the qualification, that if the plaintiff, after seeing the dangerous condition of the walk, failed to exercise that care and caution for her personal safety that a reasonable person would exercise under like circumstances, she cannot recover, it might properly have been given. But the court did not neglect to instruct the jury upon the subject of contributory negligence, and in regard to the duty required of those who used the sidewalks. In the general...