Cunningham v. The Township of Clay

• Decision Date: 07 May 1904
• Docket Number: 13,648
• Citation: 76 P. 907,69 Kan. 373
• Parties: JOHN W. CUNNINGHAM v. THE TOWNSHIP OF CLAY, ETC
• Court: Kansas Supreme Court

76 P. 907

69 Kan. 373

JOHN W. CUNNINGHAM v. THE TOWNSHIP OF CLAY, ETC

No. 13,648

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Butler district court: G. P. AIKMAN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS -- Runaway Caused by Fright at a Stone -- Proof of Fright of Other Teams. In an action against a township for damages occasioned by the runaway of a team claimed to have been caused by fright at a stone on the roadside, it is competent for the plaintiff to introduce testimony that other teams of ordinary gentleness have been frightened by the same object, for the purpose of showing that it is of a character likely to alarm ordinarily gentle horses.

2 HIGHWAYS -- Proof of Similar Stones, Similarly Situated. In such action it is competent for the defendant to introduce evidence of the existence of similar stones, similarly situated with reference to the traveled portion of the highway, along the same road and other roads in the vicinity, for the purpose of showing that the stone in question does not present an unusual appearance.

3 HIGHWAYS -- Proof of Ordinary Care by Officers Not a Sufficient Defense. In an action brought under the provisions of chapter 237 of the Laws of 1887 (Gen. Stat. 1901, § 579), making townships, under certain conditions, liable for damages resulting from defective highways, it is not a sufficient defense to show that the township officers had exercised ordinary care to prevent the defect upon which the action is based.

4. HIGHWAYS -- Whether Such Stone is a Defect is for the Jury. Whether an object in the highway, but not upon the traveled part of the road, constitutes a defect, within the meaning of the statute, because of its tendency to frighten passing horses, is a matter for the determination of the jury in view of all the circumstances of the particular case.

5. HIGHWAYS -- Notice of Stone's Dangerousness, as Well as its Existence and Location, Necessary. Where such an object is not of an unusual character, it is essential to a recovery that the plaintiff show that the township trustee had notice not only of its existence and location but also of the fact that it had been deemed dangerous to travel.

6. HIGHWAYS -- Care Required of Traveler with Knowledge of Defect. To be free from contributory negligence it is not necessary that one using a highway known by him to be defective exercise more than ordinary care, but he must adapt his conduct to that condition and employ such care as may justly be regarded as ordinary, in view of his knowledge of such defect.

7. HIGHWAYS -- Instruction Defining a Defect Properly Refused. It is not error to refuse an instruction declaring any object in the highway likely to frighten ordinarily gentle horses to be a defect within the meaning of the statute, without reference to the necessity, use or convenience of such object, or to the reason or occasion for its being permitted to remain there.

Leland & Harris, and H. W. Schumacher, for plaintiff in error.

E. N. Smith, for defendant in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

John W. Cunningham received serious injuries by the runaway of a team of mules which be was driving upon a highway in Clay township, in Butler county. He sued the township, claiming that the runaway was occasioned by the mules' becoming frightened at a large stone lying in the road, outside the traveled portion, but near it, which was of such nature that when so placed it was likely to frighten horses of ordinary gentleness, and therefore constituted a defect in the highway; that the township trustee had had notice of such defect for more than six months; and that the plaintiff was therefore entitled to recover his damages from the township under section 579 of the General Statutes of 1901 (Laws 1887, ch. 237). A jury trial resulted in a verdict and judgment for the defendant, from which error is prosecuted. The rulings complained of relate to the admission and rejection of evidence and to the giving and refusing of instructions.

The court refused to permit plaintiff to introduce testimony that other teams of ordinarily gentle disposition had been frightened by the same object, for the purpose of proving that it was of a character likely to alarm passing horses. It has been held that in actions for injuries from defective streets proof of similar accidents, offered to show the dangerous condition of a street, should not be permitted, because many complicated collateral issues might thereby be raised, tending to divert the attention of the jury from the main question; and in a few cases testimony of the character now under consideration has been excluded upon the same reasoning, but the majority of decisions covering the point deny the doctrine in its entirety. (City of Topeka v. Sherwood, 39 Kan. 690, 18 P. 933; Madison Township v. Scott, 9 Kan.App. 871, 61 P. 967.) The authorities are almost unanimous in holding that it does not apply in cases like this one to the class of testimony here offered, one reason given being that any collateral issues so raised must necessarily be very simple and not of a kind to result in any practical harm. In volume 15 of the American and English Encyclopedia of Law, second edition, at page 447, it is said: "Evidence that other horses were frightened by a particular object is admissible to show that it was reasonably calculated to frighten horses." (See cases there cited and in 1 Jon. Ev., §§ 161, 162. Also, Nye v. Dibley, 88 Minn. 465, 93 N.W. 524; Galt v. Woliver, 103 Ill.App. 71; Golden v. C. R. I. & P. Ry. Co., 84 Mo.App. 59; Water Co. v. Whiting, 58 Kan. 639, 50 P. 877.) We hold that the ruling of the court in this respect was erroneous.

Complaint is made that the defendant was permitted to give evidence of the existence of other stones claimed to be of a similar character and similarly situated with reference to the traveled portion of the highway, not only along the road in question but along other roads in the same township and in other townships of the same county. The evidence was intended to show that the stone in question did not present an unusual appearance, and was competent for that purpose. Such an inquiry must, of course, be confined to the general locality of the alleged defect, but we do not think that this rule was transgressed.

The jury were instructed that the township was "bound to use only ordinary care, caution and prudence to prevent obstructions and defects in the highway." This is the usual rule by which the liability of municipalities is measured, but the plaintiff's cause of action is based wholly upon the provisions of section 579 of the General Statutes of 1901. Before the enactment of that section in 1887 (Laws 1887, ch. 237), such an action could not have been maintained. (Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198.) The limit of the township's liability therefore must be found in the statute itself, which reads:

"Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect."

The language of this statute leaves no room for the application of the usual rules to the determination of the degree of diligence necessary to escape legal responsibility. The liability of the township is founded upon neglect of the duty to keep the highway in repair....