City of Topeka v. Sherwood

• Decision Date: 07 July 1888
• Citation: 39 Kan. 690,18 P. 933
• Parties: THE CITY OF TOPEKA v. SARAH L. SHERWOOD
• Court: Kansas Supreme Court

18 P. 933

39 Kan. 690

THE CITY OF TOPEKA v. SARAH L. SHERWOOD

Supreme Court of Kansas

July 7, 1888

Error from Shawnee Superior Court.

ACTION by Sherwood against The City, to recover damages for personal injuries. Trial at the September term, 1886, and verdict for plaintiff for $ 2,035; new trial denied defendant, and judgment in accordance with the verdict for the plaintiff. The defendent City brings the case to this court. The facts so far as they are material, are stated in the opinion.

Judgment affirmed.

W. A S. Bird, city attorney, for plaintiff in error; G. B Andrews, of counsel.

Overmyer & Safford, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.

This is an action for damages for personal injuries alleged to have been sustained by the defendant in error by reason of a fall on a sidewalk on Laurent street, Topeka, on the 25th day of December, 1884. In 1883, the First Congregational church put down a sidewalk in front of its lot on Laurent street. It was built of oak plank which came off the bridge over the Kansas river. The planks were warped and of uneven thickness, having been worn from use on the bridge, and were so hard that when the sidewalk was laid down they were not all nailed through into the sleepers or stringers beneath, but the nails were driven down each side of the plank to fasten them--"toe-nailed," as one witness stated it. The planks soon became loose, and the sidewalk was repaired in the summer or fall of 1884, by nailing and spiking down the loose planks. On the day the plaintiff was injured, she was walking along the street going east, and met three gentlemen going west. As they were passing her in single file one of them stepped upon the end of a plank outside of the stringer, and it being loose flew up, and she, tripping her foot against it, was thrown down, her left arm dislocated at the shoulder, and she was otherwise injured in her left side. There was considerable evidence offered as to the extent of her injuries.

In the original petition filed she asked for a judgment for $ 2,000; but upon the day but one before the trial, she asked leave and obtained permission of the court to amend her petition in this particular only: that its prayer would be for $ 4,000 damages, instead of $ 2,000. The defendant then asked for thirty days to answer the amended petition, which was refused by the court, and it was tried upon the day it was set for trial. This is alleged as the first ground of error. The amendment was wholly within the discretion of the court, and we see no error in granting the request of plaintiff, nor in refusing to allow defendant to file an answer to the amended petition. No allegation of fact was changed; there could have been no greater latitude in introducing testimony and proving her case under the petition as amended than there was under the original one.

Another objection made by the defendant is, that it asked that the First Congregational church be joined as co-defendant in this case, which was overruled by the court. This was correct. ( Jansen v. City of Atchison, 16 Kan. 358.) The plaintiff might perhaps have had a cause of action against the church for damages; she certainly had against the city. She elected to bring her action against this defendant; she had a right to choose the party she wished to pursue. The Congregational church put down an unsafe and dangerous sidewalk; yet it was negligence for the city to permit it to remain in that condition. It is the duty of the city to see to it that its streets and walks are in a reasonably safe condition for the purposes for which they were intended; and if injury result from a dangerous sidewalk, of which the city has notice, it will be liable in damages, though constructed by a lot-owner.

The third ground of complaint is, that the court erred in overruling the demurrer to plaintiff's petition. The same question is also presented by an objection to the introduction of any testimony under it. The defendant claims there was no allegation in the petition that it had notice of the defects, if any, in the sidewalk. We think the petition is amply sufficient. It avers that on the 25th day of December, and for a long time, to wit, six months prior thereto, the city knowingly, negligently and unlawfully suffered a certain sidewalk to be out of repair, which caused the injury to plaintiff. It will be presumed that the city had notice of a dangerous sidewalk upon one of its streets, after it had remained in that condition six months. The other complaint to the petition, that it was insufficient because it failed to state that this accident happened without fault of the plaintiff, can be disposed of by simply saying that the petition alleges that, at the time the accident occurred, she was using due care.

The next objection urged is a more serious one. The court permitted J. M. Smith, plaintiff's witness, to answer the following question:

"Ques.: I will ask you to state, from your own observation of the condition of that walk, tip to the time of its repair, whether that walk was in a safe condition or in a dangerous condition? [Objected to as incompetent, irrelevant, and immaterial. Overruled, and defendant excepts.] Ans.: I considered it in a dangerous condition all the time until it was repaired."

The time it was repaired, spoken of here, was in April following the date of the accident. This question was an improper one, and the court should not have permitted the witness to answer it. The witness was allowed to trespass upon the exclusive province of the jury. It was for them, and not for the witness, to determine whether the walk was dangerous or safe, or rather, reasonably safe. Holding that the admission of this testimony was error, we have the further proposition presented, whether it is substantially prejudicial to defendant. There seems to have been a great preponderance of evidence tending to prove that this sidewalk was dangerous to those who passed over it. This witness himself had fully and minutely set forth the condition of this sidewalk immediately preceding this testimony, and from his description there could have been no other deduction than that it was dangerous. He stated that from March, 1884, to the time of the accident in December, he had been in the habit of passing over the sidewalk very frequently; that although he was out of town a great deal, when he was at home he passed over it three or four times a day. He testified that it was very uneven, and when he walked on one edge of a plank the other would tip up; that they were always rocking; and that in the fall of 1884, when he was walking over the sidewalk with another party, who stepped on the edge of one plank, the end next him flew up and struck him, and he fell. He testified further:

"Ques.: You speak of the boards being loose; I will ask you to state how many of those planks were loose. Ans.: I don't know; I should judge they were all loose; you could tell by walking over them.

"Q. What was the effect or sensation of walking over them, as to whether they were loose or tight? A. By the way they felt when I was walking over them they all appeared to be loose; I didn't stoop down to feel them, but every one, as you stepped on them, seemed to be moving."

Then follows the question complained of. From the description of the walk which he had given, no one could reasonably have drawn any other opinion than that the walk was a dangerous one; yet, notwithstanding the minute and detailed testimony of...