City of Horton v. Trompeter

• Decision Date: 10 March 1894
• Parties: CITY OF HORTON v. TROMPETER.
• Court: Kansas Supreme Court

35 P. 1106

53 Kan. 150

CITY OF HORTON v. TROMPETER.

Supreme Court of Kansas

March 10, 1894

Syllabus

1. The probate court is presumed to have lawfully exercised its jurisdiction, and, where the steps taken in that court in granting administration upon the estate of a minor appear to be regular, it makes a prima facie showing of authority to issue the letters of administration.

2. The deceased was eight years of age, and an inhabitant of the state, owning property of the value of $2.25 at the time of her death. Held that, upon a proper application by the father of the deceased, the probate court had jurisdiction to grant letters of administration.

3. A person who has knowledge that a sidewalk had previously been overturned by the wind, and had since been repaired, has a right to assume, in the absence of knowledge to the contrary that it had been properly repaired, and safely anchored to the ground, by the city authorities. Even a knowledge that it was somewhat defective would not debar him from the use of the street. Nor is notice that it is unsafe or out of repair necessarily negligence in one who travels over it.

Error from district court, Brown county; R. C. Bassett, Judge.

Action by Joseph Trompeter, administrator of the estate of Frona Trompeter, deceased, against the city of Horton, to recover for the death of decedent. There was judgment for plaintiff and defendant brings error. Affirmed.

James A. Clark, for plaintiff in error.

Frank H. Foster, for defendant in error.

OPINION

JOHNSTON, J.

While Frona Trompeter, a child about eight years of age, was passing over a street in the city of Horton, a sidewalk upon the same was caught up by the wind, blown over upon her, and she was thereby killed. Her father, Joseph Trompeter, as administrator of the deceased, brings this action to recover damages for her death, claiming that it resulted from the negligent construction and maintenance of the sidewalk. There was an abrupt slope on one side of the street, whereon the sidewalk was built, and one side of a portion of the walk was held up by props or stilts from one to three feet long; thus forming a pocket under the walk, through which the wind could not escape. Instead of complying with the city ordinance which required the walks to be built of plank two inches in thickness, this walk was constructed of boards only one inch in thickness, and at this point it had blown over several times before the killing of Frona Trompeter. Special findings were made by the jury to the effect that the street commissioner, shortly before the accident, had repaired the sidewalk, but had failed to make it reasonably safe for the use of the public. It was also found that the city had notice of the defective condition of the sidewalk before it blew over, and that such notice was given to the mayor and street commissioner. In answer to a question, the jury stated that the day on which the accident occurred was not an unusually windy one, for that time of the year, and, further, that Frona Trompeter died owning personal property of the value of $2.25. The jury assessed the damages of the plaintiff below at $2,500, and the city alleges several grounds for...