City of Olathe v. Mizee

• Decision Date: 09 April 1892
• Citation: 29 P. 754,48 Kan. 435
• Parties: THE CITY OF OLATHE v. ELVIRA MIZEE
• Court: Kansas Supreme Court

29 P. 754

48 Kan. 435

THE CITY OF OLATHE v. ELVIRA MIZEE

Supreme Court of Kansas

April 9, 1892

Error from Johnson District Court.

THE opinion contains a sufficient statement of the case.

Judgment affirmed.

S. T Seaton, for plaintiff in error.

John T Little, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by Elvira Mizee against the city of Olathe, to recover for personal injuries sustained by her in falling into an excavation in a public street of the city of Olathe, which was left uncovered and unguarded. She was injured in the night-time, while crossing Kansas avenue at its intersection with Park street, and while passing along on the south side of Park street. An excavation was made by the city, under the direction of the street commissioner, about 20 inches deep and 20 inches wide, for the purpose of laying a drain pipe to carry off water along the east side of Kansas avenue. It extended from the cross-walk on the south side of Park street southward. The cross-walk was constructed of two rows of stone, each of which was 20 inches wide, with an intervening space between them of 20 inches. The ditch, which extended up to this cross-walk, was left unguarded; and the plaintiff, in attempting to pass along the cross-walk, met parties going in an opposite direction, and, stepping aside to allow them to pass, she fell into the ditch and sustained the injuries complained of. The jury awarded her $800, and the city complains, and assigns several rulings of the court as error.

An exception was taken to the admission of testimony in regard to the placing of a light at the ditch by the city marshal subsequent to the occurrence of the injury. It was contended that it was offered to show negligence on the part of the city and an admission that such a precaution should have been taken prior to the accident. On the other side, it was said that it was not offered for that purpose, but that as one witness had incidentally remarked that there was a light there, the testimony was introduced merely to show that it was not there when the injury occurred, and to prevent the inference that Mrs. Mizee, by the aid of such light, should have seen and avoided the excavation. Whatever may have been the purpose of the parties in respect to this testimony, it is unimportant in this case, and the objection made is immaterial. The negligence of the city in the matter is undoubted. To leave such a dangerous excavation in a public thoroughfare of the city, and close to a much-used walk, without guards, barriers, lights, or danger signals, is a marked case of carelessness. It would be clearly negligence to leave such a ditch uncovered and unguarded in the day-time; but for the city authorities to permit such a pitfall to remain open and without lights or guards in the night-time, with full knowledge of its dangerous character, is gross carelessness. There is no dispute as to the existence, location and character of the excavation; and hence the ruling of the court upon the admission of testimony respecting the negligence of the city is unimportant. If the question of negligence on the part of the city had been in issue, the court would have been justified in admitting the testimony. (Railroad Co. v. Chase, 11 Kan. 47; Railroad Co. v. Retford, 18 id. 245; City of Emporia v. Schmidling, 33 id. 485; Railway Co. v. Weaver, 35 id. 412; City of Abilene v. Hendricks, 36 id. 196; Railroad Co. v. McKee, 37 id. 592.)

Complaint is made of the refusal of an instruction requested by the city, that if it was found from the evidence "that the injury complained of was caused by the negligence of the city, combined with the negligence of a third party, for whose acts the city was not responsible, and would not have happened but for the acts of such third party, then the city is not liable, and you must find for the defendant." The request was based upon testimony to the effect that Mrs Mizee stepped from the cross-walk to avoid a collision with persons who were approaching her on the walk from the opposite direction. The testimony in the case is not such in our opinion as to require a statement of the rule with reference to the proximate and remote causes of the injury. It is not of such a character that it can be said that the injury would not have occurred but for the negligence of the persons who met and passed her upon the street. There is nothing to indicate any negligence on their part. They did not jostle or push her. She was carrying large bundles in her arms,...