Costello v. The Board of County Commissioners of The County of Riley

• Decision Date: 07 February 1914
• Docket Number: 18,628
• Citation: 91 Kan. 532,138 P. 639
• Parties: ELLA M. COSTELLO, as Administratrix, etc., Appellant, v. THE BOARD OF COUNTY COMMISSIONERS of the County of Riley, Appellee
• Court: Kansas Supreme Court

138 P. 639

91 Kan. 532

ELLA M. COSTELLO, as Administratrix, etc., Appellant, v. THE BOARD OF COUNTY COMMISSIONERS of the County of Riley, Appellee

No. 18,628

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Riley district court; SAM KIMBLE, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEATH -- Defective Bridge -- Traction Engine -- Failure to Plank Bridge--Construction of Statutes. Under section 658 of the General Statutes of 1909 as affected by section 45 of chapter 248 of the Laws of 1911 damages for death or injury caused by a defective bridge to one passing thereover with a traction engine weighing more than three tons can not be recovered unless it be shown and the jury find that the person killed or injured complied with the latter section in respect to planking such bridge.

2. SAME. Under the section last mentioned it is not necessary that a traction engine be used for transporting or distributing oil or other merchandise or commodity in order that the operator thereof be required to plank a bridge over which he moves such engine weighing more than three tons.

3. SAME. Such latter section operates to add to the former a condition precedent to a recovery and is constitutional and valid.

J. G Waters, John Waters, Lee Monroe, all of Topeka, and W. S. Roark, of Junction City, for the appellant.

Charles H. Hughes, county attorney, for the appellee; John E. Hessin, of Manhattan, of counsel.

OPINION

WEST, J.:

The plaintiff sued to recover for the death of her husband occasioned by the falling of a bridge over which he was attempting to pass with a traction engine. The petition alleged that it was impracticable to plank the bridge, and that on account of its weak condition the laying of planks or boards would not have prevented its breaking and falling. A demurrer to the petition was sustained and the plaintiff appeals. The question involved concerns the construction of three statutes. The plaintiff contends that unless the failure to plank the bridge contributed to the injury it would not preclude a recovery, and the defendant insists that such planking is a condition precedent to a recovery.

In 1886 section 7317 of the General Statutes of 1909 (Laws 1886, ch. 144, § 1) was enacted, making it the duty of all persons operating steam traction engines over a public highway to lay down planks of certain dimensions on the floor of all bridges and culverts while crossing the same, and a penalty for the failure so to do was provided. The next year section 658 of the General Statutes of 1909 was enacted (Laws 1887, ch. 237, § 1), giving a right of recovery to one suffering damages received on a defective bridge or culvert, "without contributing negligence on his part," when the chairman of the county board or township trustee had had certain notice of the defect. These two statutes remained in force until the passage of chapter 248 of the Laws of 1911. section 45 of which reenacted the first section already quoted literally except changing the proviso so that the act should not apply to any machine or engine not exceeding three tons instead of one ton in weight, and except that instead of describing the vehicles as in the former section it followed the description until coming to "steam traction engines of any kind," and in place thereof used the words "traction engines transfer wagons or vehicles of any kind used for the transportation or distribution of oil or any merchandise or commodity." After thus reenacting the section the following was added: "provided further, that no person, firm or corporation seeking to recover damages against any city, township or county under the provisions of this section shall secure a judgment therein, unless the jury shall find that such person, firm or corporation had before receiving the injury complained of complied with the provisions of this section." The same penalty for violation was left in force.

It is first contended that as there was no comma after the words "traction engines" the amendment was intended to include only such traction engine, transfer wagon or vehicle as was used for the transportation or distribution of oil merchandise or other commodity. While the punctuation would justify this construction the result would be so ludicrous and absurd that the legislature could not be presumed to have intended it, for certainly it was not the purpose to subject the bridges of the county to the damages of passing traction engines except when they were used...