Feldkamp v. The City of Kansas City

• Decision Date: 06 February 1904
• Docket Number: 13,475
• Citation: 75 P. 464,68 Kan. 479
• Parties: MARY FELDKAMP v. THE CITY OF KANSAS CITY, KAN
• Court: Kansas Supreme Court

75 P. 464

68 Kan. 479

MARY FELDKAMP v. THE CITY OF KANSAS CITY, KAN

No. 13,475

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

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

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES AND CITY OFFICERS -- Defective Viaduct -- Contributory Negligence. A viaduct was in a condition that it was unsafe for teams and vehicles, but not for pedestrians. Its entrance was guarded by a barricade easily passed by pedestrians, and was passed by them in large numbers for a long time. Subsequently the viaduct became dangerous for the passage of persons on foot, but there was no additional warning of this changed condition given at the entrance. Held, that the court cannot say, as a matter of law, that the barricade was sufficient warning to charge with contributory negligence one who, without knowledge of the increased danger, went upon the viaduct and was injured.

2. CITIES AND CITY OFFICERS -- Sufficiency of Warning a Question for the Jury. The sufficiency of the barricade as a warning of the dangerous condition of the viaduct was under all the circumstances, a question of fact, and should have been submitted to the jury.

Silas Porter, and I. F. Madlem, for plaintiff in error.

J. W. Dana, and M. J. Reitz, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The plaintiff in error, who was plaintiff below, brought her action to recover from the city for the death of her husband, occasioned, as she alleged, by its negligence. The facts appearing in the evidence are substantially these: South James street is one of the principal public streets of Kansas City, Kan., running in a southeasterly direction through a populous district near the stock-yards, crossing the state line and extending into Kansas City, Mo. James street is crossed at a point near the state line between Kansas and Missouri by numerous tracks of the Missouri Pacific Railway Company. To permit the free passage of travel along James street there had been erected over these tracks a viaduct some 3000 feet long, about 1800 feet of which was in Kansas City, Kan., and the balance in Kansas City, Mo. The viaduct crossed the state line at a sharp angle, so that the planks forming the roadway upon it where the line crossed were partly in Missouri and partly in Kansas. The roadway was about twenty-two feet wide and elevated about twenty-five feet above the tracks below. There were no separate ways for foot travel, but pedestrians and teams alike used the entire width.

In October, 1898, some 200 feet of the viaduct immediately over the railroad tracks was knocked down by a passing train and made impassable, in which condition it remained for some two years, during which time a barricade was erected and maintained at each end and travel of all kinds was entirely suspended. After the broken spans were restored in July, 1900, foot travel only was resumed, the floor in the Missoui portion not being in such a condition that it could be used with safety by teams. The barricade, which was still maintained, consisted of a stick of timber two inches by four inches, the ends lying upon the outside railings, supported in the center by a piece of the same dimensions and raised about four feet above the roadway. Large numbers of people came and went on foot across the viaduct, insomuch that different witnesses spoke of the stream of travel as being "many hundreds"; as being "a constant stream"; as being "so many that they could be seen walking over it at any time of day from morning until dark." Pedestrians coming to the barricade would stoop sufficiently to pass under it and otherwise give it no attention. It was thus used until September, 1901, when the authorities of Kansas City, Mo., preparatory to repairing that end, removed the planks at the Kansas end entirely, and thus, on account of the angle at which the viaduct crossed the state line, left an open triangular space west of the state line and in Kansas City, Kan.

While the plaintiff's husband had frequently used the viaduct in passing to and from his work during the year from July, 1900, he had not used it for some little time before the floor was torn up, as noted above, and did not know that the hole was there. On October 6, 1901, about eight o'clock in the evening, he started to return home from his work, and for that purpose passed under the barricade at the Kansas end and went along the viaduct until he came to the place where the plank flooring had been removed. It was dark and no lights had been provided, so that he was unaware of the dangerous conditions existing, and stepped into the open space and was precipitated upon the tracks below, causing an injury from which he died in a few weeks. No other or different barricade had been erected or warning given after the planks had been removed and while the hole was there than had existed from the first -- that is, some time in October, 1898.

At the close of the plaintiff's testimony, which developed the above facts, the court sustained the city's demurrer thereto, and gave judgment against the...