Clair v. Kansas City

• Decision Date: 08 December 1956
• Docket Number: No. 40255,40255
• Parties: Betty Lou CLAIR, Appellee and Cross-Appellant, v. KANSAS CITY, Kansas, a Municipal Corporation, Cross-Appellee, and J. B. Rich, Bernard Buchholz, Robert S. Levy, Philip Pekow and Ruth Pekow, Trustees of the Levy-Brookside Trust, R. Levy and Ruth Levy, Trustees of the Robert S. Levy and Ruth Levy Trust, Cella Pekow, Trustee of Eugene Pekow Trust and Sandra Pekow Trust, Co-Partners Doing Business Under the Firm Name and Style of Huron Building, Appellants.
• Court: Kansas Supreme Court

Page 468

304 P.2d 468

180 Kan. 409

Betty Lou CLAIR, Appellee and Cross-Appellant, v. KANSAS CITY, Kansas, a Municipal Corporation,

Cross-Appellee, and J. B. Rich, Bernard Buchholz, Robert S.

Levy, Philip Pekow and Ruth Pekow, Trustees of the

Levy-Brookside Trust, R. Levy and Ruth Levy, Trustees of the

Robert S. Levy and Ruth Levy Trust, Cella Pekow, Trustee of

Eugene Pekow Trust and Sandra Pekow Trust, Co-Partners Doing

Business Under the Firm Name and Style of Huron Building, Appellants.

No. 40255.

Supreme Court of Kansas.

Dec. 8, 1956.

Rehearing Denied Jan. 11, 1957.

Syllabus by the Court

1. Under the law of this state an abutting property owner is not liable for defects in a sidewalk, even though he is using the area under such sidewalk by permission of the city, unless the defects complained of are created by his own negligence or bear some causal relationship to his use of the area under the sidewalk.

2. The record in an action to recover damages for injuries sustained by reason of a fall on an alleged defective sidewalk examined, and it is held, the plaintiff's evidence was insufficient to establish liability against an abutting property owner having the right to use a portion of the area under such sidewalk for basement and storage purposes.

Willard L. Phillips, Kansas City, argued the cause, and Thomas M. VanCleave, Jr., Kansas City, and Tom J. Stubbs, and Robert S. McKenzie, Kansas City, Mo., were all with him on the briefs for appellants.

John E. Shamberg, Kansas City, argued the cause, and Joseph Cohen, Charles S. Schnider, Thomas E. Joyce, Joseph P. Jenkins and Albert M. Ross, Kansas City, were with him on the briefs for appellee Betty Lou Clair.

C. W. Brenneisen, Jr., Joseph T. Carey, Jr., Francis J. Donnelly, and George W. Haley, Kansas City, were on the brief for appellee City.

PARKER, Justice.

This is an action to recover damages for personal injuries sustained by reason of a fall on an alleged defective sidewalk in the City of Kansas City, Kansas. Throughout the opinion the parties will be referred to as follows: Betty Lou Clair, the plaintiff and appellee, as plaintiff; the defendants, now the appellants, J. B. Rich, et al., d/b/a the Huron Building, as owners; and the defendant City of Kansas City, Kansas, now appellee, as the city.

Plaintiff commenced the action by the filing of a petition in district court wherein she alleged in substance that the owners maintained, operated and owned a multistoried building known as the Huron Building, in connection with which activity they maintained a sidewalk elevator, opening on the sidewalk in front of the property, and maintained the sidewalk in front of such building; asserted that such sidewalk was a public sidewalk, running adjacent to and parallel to the front of the building in a north and south direction, and that the city was charged with the duty and responsibility of maintaining the public streets and sidewalks within its confines in a reasonably safe condition; claimed that on or about September 21, 1953, as she was walking on such sidewalk, directly in front of the building, her right shoe caught and she fell in a hole, constituting a defect in the sidewalk, thereby sustaining injuries; detailed the approximate size of the alleged defect; described the injuries suffered and sustained by her as the result of her fall; charged that the owners and the city were negligent in failing to maintain the sidewalk in front of the building, in allowing it to fall into a state of disrepair, in failing to repair the defective arca, and in failing to barricade such area and erect warning signs; averred that the city had been given notice of her claim as provided by law; and prayed for judgment against both the owners and the city for all damages sustained by her as the result of the fall.

In response to the petition the owners and the city filed separate answers each containing a general denial, a claim that if plaintiff had sustained personal injuries as alleged the proximate cause thereof was her own carelessness and negligence in failing to look where she was walking and see the alleged hole in the sidewalk when by the exercise of reasonable care and diligence she could and should have seen it, and a prayer that plaintiff take naught by reason of the action. Subsequently the city filed an amended answer. This pleading duplicated the allegations of its initial answer and in addition set forth in more detail the specific acts of carelessness and negligence relied on as precluding the plaintiff's recovery.

In replies to these answers plaintiff denied all allegations of new matter therein contained and renewed her prayer for judgment.

With issues joined as just related the cause came on for trial by a jury. Following the close of plaintiff's evidence separate demurrers were made thereto by the owners and by the city on grounds, among other things, that such evidence did not prove or tend to prove a cause of action in favor of plaintiff and against either defendant. When these demurrers were overruled the owners adduced their evidence and rested.

Thereupon, over strenuous objection of the owners, the city offered and was allowed to introduce in evidence its Ordinance No. 17826 dated August 11, 1921. In substance Section 1 of this Ordinance grants the Elks Benevolent and Charitable Association (conceded to be the former owners of what is now the Huron Building) permission to excavate under the sidewalk space in front of its property; to erect a suitable sidewalk over such excavation and to make necessary openings therein in a manner satisfactory to the city; and to use the space so excavated in the erection, maintenance and operation of a building to be constructed, therein described. Section 2 thereof provides that in consideration of such grant and permission the Elks Benevolent and Charitable Association agrees to be bound to hold the city harmless from all loss or damage either to person or property by reason of the excavations made in the streets, either in construction of said improvement or the maintenance thereof in the future. Sections 3 and 4 of such Ordinance have no bearing on the issues and need only be mentioned.

Upon admission of the foregoing evidence, and without introduction of any other evidence, the city rested its cause. Thereafter, and before the case was submitted to the jury, it requested permission to file an amended answer to conform with the proof and, when this request was granted, filed a supplemental answer instanter, reciting that at all times alleged in plaintiff's petition, there existed between the city and the present owners of the Huron Building and all of their predecessors in title a contract in the form of an Ordinance, which was made a part of such pleading by reference, wherein the owners of the Huron Building contracted and agreed to save the city harmless in the event that any person was injured by reason of the owners of the Huron Building neglecting to maintain the sidewalk in front of such building in a reasonably safe condition for pedestrian travel.

Following the foregoing proceedings the owners moved for a directed verdict. Upon the overruling of this motion the trial court read its written instructions, several of which were objected to, to the jury and then submitted the cause to that body which, in due time, returned its general verdict, finding for the plaintiff and against the owners and for the city and against the plaintiff, along with its answers to special questions submitted by the court at the time the cause was turned over to it for its consideration.

The owners then filed a motion to set aside the special findings of the jury; a motion for judgment on such special findings; and a motion for a new trial, while the plaintiff filed a motion for judgment against the city on the answers to the special findings; a motion for judgment against the city non obstante; and a motion for a new trial against the city. After overruling all of the foregoing motions the trial court rendered judgment in accord with the general verdict. Whereupon the owners gave notice they were appealing from the judgment, the order overruling their demurrer to plaintiff's evidence, the order overruling their motion for a directed verdict, and all adverse rulings on their post trial motions. Later the plaintiff gave notice of her cross-appeal from the portion of the judgment rendered against her and in favor of the city and from all...