Detarr v. The Ferd. Heim Brewing Company

• Decision Date: 07 July 1900
• Docket Number: 11,665
• Citation: 62 Kan. 188,61 P. 689
• Parties: MAZIE A. DETARR v. THE FERD. HEIM BREWING COMPANY
• Court: Kansas Supreme Court

61 P. 689

62 Kan. 188

MAZIE A. DETARR v. THE FERD. HEIM BREWING COMPANY

No. 11,665

Supreme Court of Kansas

July 7, 1900

Decided July, 1900.

Error from Wyandotte court of common pleas; W. G. HOLT, judge.

Judgment affirmed.

T. P Anderson, and J. D. Wendorff, for plaintiff in error.

Moore & Berger, for defendant in error.

OPINION

JOHNSTON, J.:

Near the Riverview station, and between the Grandview and Park branches of the elevated street-railway in Kansas City, Kan is a lot owned by the Ferd. Heim Brewing Company. On the east end of the lot was a house occupied by the Hicks family, and on the west end was a small business house occupied by a cobbler. The lot being immediately south of the Riverview station, persons who were transferred from the Grandview to the Park line, as well as those living west and south of the station, generally passed over the lot when intending to take passage on the Park line of the street-railway, and those going west or south from the Park line station, or to take passage on the Grandview line, did the same. A path had thus been made between the houses mentioned and cinders had been placed thereon. A water-closet was erected on the lot, near the cobbler's house, which was used by the Hicks family. About July 1, 1897, the owner of the lot, intending to erect a new building thereon, tried to gain possession of the same and to induce the tenant, Hicks, to remove therefrom. It was claimed that consent was given, and a contractor removed the water-closet and other structures and began grading the lot. After some plowing and grading had been done, Hicks objected to the continuance of the work, and on July 2 instituted an action and caused a restraining order to be served on the owner and the contractor. The vault of the water-closet had been partially filled when the restraining order was served, and the contractor nailed boards over it and left the premises. The public continued to pass along the path which it had made, and near the covered vault. The restraining order was set aside and vacated by the court granting it on August 27, 1897, and though some proceedings for review were taken, it is not shown by the record that the injunction was continued in force. There was litigation between the owner and Hicks as to the possession of the lot, but Hicks remained in possession until March, 1898, when he was removed under a writ of restitution issued in an action of forcible detainer.

On the night of December 25, 1897, and before the removal of Hicks Mazie A. DeTarr, while walking across the lot with a view of taking a Park line car, fell into the vault and was injured. She and her family had passed over the lot in the morning, but she did not observe that a board had been removed from over the vault, or that there was an opening there. On returning at night she noticed a car coming and increased her speed so as to reach the station in time, and, while walking rapidly, she diverted her course from the path, and fell into the hole. She brought this action, claiming that, there being a path across the lot which was habitually used by the public, the owner was guilty of negligence in not filling up the vault and in leaving it without a secure cover. The defendant denied that it was guilty of negligence, claiming...