Durst v. H. P. Wareham and The City of Manhattan

• Citation: 297 P. 675,132 Kan. 785
• Decision Date: 11 April 1931
• Docket Number: 29,841
• Parties: ARTHUR DURST, Appellee, v. H. P. WAREHAM and THE CITY OF MANHATTAN, Appellants
• Court: Kansas Supreme Court

297 P. 675

132 Kan. 785

ARTHUR DURST, Appellee, v. H. P. WAREHAM and THE CITY OF MANHATTAN, Appellants

No. 29,841

Supreme Court of Kansas

April 11, 1931

Decided January, 1931.

Appeal from Riley district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Duty of Abutting Owner--Structures. It is the duty of the owner of land adjacent to or abutting upon a highway to so construct and maintain the structures on his land as not to endanger the safety of travelers using the highway in a lawful manner.

2. SAME--Duty of Abutting Owner--Involuntary Trespass. Where a man is traveling in an alley on a motor cycle at a lawful rate of speed, and due to ice and snow on the alley paving he loses control of his machine and it leaves the alley and goes onto the land of another, taking the rider with it, not of his own volition and against his will, and he is injured by a structure, constructed within three feet of the alley line in a negligent manner with the knowledge and consent of the landowner, he is not a trespasser so as to prevent the landowner from being liable for the injury.

3. SAME--Proximate Cause--Effect of Inanimate Concurring Cause. Where an injury is due to two causes--one an inanimate thing for which no one is liable--and the other a negligent act of another, without which the injury would not have occurred, the person who committed the negligent act is liable.

4. SAME--Proximate Cause--Jury Questions. The question of whether a negligent act is the proximate cause of an injury and whether an ordinary, reasonable, prudent man would have foreseen that injury might occur as a result of a negligent act is a question of fact for the jury.

5. MUNICIPAL CORPORATIONS--Streets--Duty as to Abutting Structures. A city is liable for injuries caused by a defective condition of its streets and alleys, but in order to render it liable its officers must have had some notice, either actual or constructive, of the defect, and they are not obliged to make an inspection of structures erected on land adjacent to or abutting upon its streets and alleys to ascertain whether or not they are dangerous to travelers on the streets and alleys.

R. P. Evans, George Clammer, Charles Hughes, Walter Reed Gage, all of Manhattan, James V. Humphrey and A. S. Humphrey, both of Junction City, for the appellants.

C. Vincent Jones, of Clay Center, Ira C. Snyder, Hal E. Harlan and A. M. Johnston, all of Manhattan, for the appellee.

Smith, J. Johnston, C. J., not sitting. Sloan, J., not participating. Harvey, J. dissenting in part.

OPINION

SMITH, J.:

The action was brought against H. P. Wareham and the city of Manhattan to recover damages caused when the roof of a shed maintained by Wareham collapsed upon plaintiff, injuring him. Plaintiff recovered against both defendants, and both appealed.

Appellant Wareham owned the hotel in Manhattan. In the rear of this hotel is an alley. This alley runs east and west through the entire block. On the north side of this alley, directly opposite the rear of the hotel, Wareham has built and maintains a garage. Just east of the garage there is a driveway, which was used during the process of the building of the hotel and the garage. This driveway is about twelve feet wide. Just east of this driveway there was an old shed, the collapse of which caused the injury. This shed was what was left of an old stone barn. At one time all four of its walls had been made of stone. The west wall had been removed about ten years before and the south wall about three years before the injury. At the time the injury sued for occurred, the south side of the shed, which was on the alley line, was open with no doors or barricades whatever. The west side was also open. There was nothing to support the roof on either the west or the south side. The west portion of this shed had a concrete slab for a floor, which extended east to within about two or three feet of the east end of the shed and west to the garage. This slab was about three or four inches above the level of the alley. Up to about a year before the injury the only support of the southwest corner of the roof had been a post, which stood just about on the alley line. About a year before the injury this post was removed and another was set thirty-six inches in from and north of the alley line. This post was a four by four with a two by four spiked up and down its north side. Both timbers reached from the concrete base to the roof and the four by four extended upward on the south side of the two by eight rafter of the roof. Several spikes were driven through this rafter into the four by four. The two by four was cut so that the rafter rested upon it. From a point approximately twenty inches below the top of this post a brace ran from the north side of the two by four up and eastward and was spiked also to the north side of the post. From about the same place on the west side of the post a brace extended up and to the northward and was spiked to the plate. The east edge of the roof was spiked to a two by eight plate which was bolted clear through the stone wall. The bottom of this post rested upon the concrete slab and was not fastened or braced in any way. At a point eleven feet north of the alley line and supporting the roof were four two by fours, which remained in place after the removal of the remainder of a partition formerly dividing this portion of the shed into two rooms.

The alley on the day of the injury was covered with snow and ice to a depth of several inches. The top of this snow and ice was about level with the top of the concrete slab, and the place where the concrete slab raised above the alley line was not visible.

Appellee had been employed for about two months as an assistant cook at the Wareham hotel. On the day of the injury he entered the alley from the west on his motor cycle with side car attached. He rode east past the back door of the hotel and past the shed. When he had gone east a short way he thought of a message he wanted to give the cook at the hotel. He turned around and started back. As he turned, his motor cycle caught on an automobile that was standing in the alley. He put his feet down on the ground and pulled it back. He then went on west at the rate of four or five miles an hour. When he reached a point in the alley directly opposite to the post the front wheel dropped into a hole or rut, the rear wheel slipped around and the motor cycle headed directly for the post, striking it, knocking it from under the roof, and letting the roof fall upon appellee, causing him serious injuries. Appellee brought suit against the city and Mr. Wareham and recovered damages. The defendants appealed. The amount of the damages and the extent of the injuries are not questioned.

Appellee contends that the negligence of defendant Wareham consisted of not fastening or bracing this post at the bottom and that this negligence was the proximate cause of his injury. He predicates his claim that the city is liable upon the duty of the city to see that its highways are always in a safe condition for travelers.

Appellant Wareham contends that the proximate cause of the injury was appellee's loss of control of his motor cycle; that the injury was not within the reasonable bounds of anticipation of defendant; that appellee was at the time of the accident a trespasser on appellant's property, and that no negligence whatever on the part of appellant was proved.

The city contends that the special findings of the jury, which will be noticed later, entitled it to a judgment and that if it was not entitled to this, then if judgment was rendered against the city that it should recite that appellant Wareham is primarily and the city secondarily liable.

We will examine the claims of appellant Wareham.

As to the contention that no negligence on his part was shown: Negligence is a breach of some duty. What was the duty that defendant Wareham owed to travelers in the alley? The jury in answer to special questions found that the post in question rested upon the top of the cement slab and was not fastened or braced in any way at the bottom, and that it should have been braced or fastened at the bottom in order to be a safe and proper protection to travelers using the alley. It also found that the post was put in place in that manner with the knowledge and consent of Wareham. 45 C. J., at page 859, lays down the rule as follows:

"The owner of property abutting on, or adjacent to, a highway, owes a duty to the public to exercise reasonable care to prevent injury to passers-by from its defective or dangerous condition; and if he fails to do so, and thereby renders the highway unsafe for travel, he makes himself liable although the consequent injury is received upon his own land and not on the highway."

The case cited in support of the above rule is Ruocco v. United Advertising Corporation, 98 Conn. 241, 119 A. 48. The syllabus in that case is:

"As a general rule the owner of property owes no duty to trespassers to keep his premises in a safe condition for their use. But an abutting owner is bound to exercise reasonable care to keep his premises in such a condition as not to endanger travelers in their lawful use of the highway; and if he fails to do so and thereby renders the highway unsafe for travel, he becomes liable, although the consequent injury is received upon his own land and not on the highway.

"This rule is one of public necessity, since the maintenance on private property of a menace dangerous to public travel is a nuisance, which casts upon the owner of the property the obligation to use due care."

That case is also reported in 30 A. L. R. 1237. A note to the above case gives a reference to a notation...