Cook v. The City of Topeka

• Decision Date: 06 April 1907
• Docket Number: 14,979
• Citation: 90 P. 244,75 Kan. 534
• Parties: ANDREW COOK v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

90 P. 244

75 Kan. 534

ANDREW COOK v. THE CITY OF TOPEKA

No. 14,979

Supreme Court of Kansas

April 6, 1907

Decided January, 1907.

Error from Shawnee district court; ALSTON W. DANA, judge.

Cause reversed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Injury Caused by Defective Alley--Notice Describing Place of Accident. Where one who claims to have received injuries because of an obstruction in a public alley files a written statement with the city clerk which complies with the statute (Laws 1903 ch. 122, § 7) in all respects, except that it misdescribes the place, but immediately upon the filing of such statement the city authorities start an investigation and the place where the accident happened is definitely located, and the obstruction removed, held, that a petition stating these facts is not demurrable.

W. I Jamison, and Hazen & Gaw, for plaintiff in error.

Frank G. Drenning, city attorney, and W. C. Ralston, assistant city attorney, for defendant in error.

OPINION

GREENE, J.:

The plaintiff brought this action to recover damages for injuries sustained by him by the overturning of his wagon, caused by its coming in contact with an obstruction in one of the public alleys in the city of Topeka. A demurrer was sustained to his petition, and the sufficiency of the petition, as against a demurrer, is the only question for our consideration.

The alleged defect in the petition is that it shows that the plaintiff had not within four months after the injury and before bringing the action filed with the city clerk a written statement giving the time when, and a description of the place where, the accident happened, and the circumstances relating thereto, as provided for in section 7 of chapter 122 of the Laws of 1903. The petition shows that such a statement was filed with the city clerk within the time required. With respect thereto the petition states:

"Plaintiff further avers that within four months immediately following the receiving of such injuries, as aforesaid, he filed with the city clerk of the defendant city of Topeka a written statement, a copy of which is hereto attached, marked Exhibit A' and made a part hereof, and thereby presented to the mayor and council of said city his claim for damages on account of said injuries in the sum of $ 1000, which claim was, prior to the commencement of this suit, rejected by said mayor and council of defendant city of Topeka.

"But plaintiff further avers that he is an ignorant and illiterate man, and was not at that time acquainted with the names of the streets in the locality where said injuries were received, and that in making out said written statement to be filed with said city clerk he erroneously described the place where said injuries were received as being in an alley on the east side of College avenue, about 100 feet north of Huntoon street, when in truth and in fact said injuries were received in the alley next east of Washburn avenue, about 100 feet...