Francis v. City of Wichita, 41301

• Decision Date: 11 April 1959
• Docket Number: No. 41301,41301
• Citation: 337 P.2d 678,184 Kan. 570
• Parties: Adeline FRANCIS, Appellee, v. CITY OF WICHITA, a Municipal Corporation, Appellant.
• Court: Kansas Supreme Court

Page 678

337 P.2d 678

184 Kan. 570

Adeline FRANCIS, Appellee, v. CITY OF WICHITA, a Municipal Corporation, Appellant.

No. 41301.

Supreme Court of Kansas.

April 11, 1959.

Syllabus by the Court

Where a defendant does not stand upon his demurrer to the plaintiff's evidence, but introduces evidence in his own behalf, the question whether the evidence is sufficient to warrant the submission of plaintiff's case to the jury is to be determined on the basis of all the evidence and not on plaintiff's evidence alone. Under such circumstances, if the defendant does not at the close of all the evidence renew his demurrer or move for a directed verdict, he waives the right to contend the evidence is insufficient to warrant the submission of plaintiff's case to the jury (following In re Estate of Rogers, 184 Kan. 24, 334 P.2d 830).

Robert C. Helsel, Wichita, argued the cause, and Fred W. Aley and Eugene L. Pirtle, Wichita, were with him on the briefs for appellant.

William L. Fry, Wichita, argued the cause, and Harry Gillig, Wichita, was with him on the briefs for appellee.

FATZER, Justice.

The action was one for damages for personal injuries sustained by plaintiff when she tripped and fell on a broken sidewalk. The city of Wichita has appealed from the order of the trial court overruling its demurrer to plaintiff's evidence.

A brief summary of plaintiff's evidence discloses that at about 8:30 o'clock on the morning of February 17, 1956, plaintiff was walking on the sidewalk from her home on Franklin Street to a bus stop when she tripped and fell, suffering injuries. The sidewalk where she tripped was broken and raised some five inches. In walking toward the bus stop the section of the sidewalk which was broken sloped upward. Plaintiff lived nearby and had passed the defective portion many times but had avoided it by keeping it in mind. On the morning in question she was walking at a normal gait but did not remember the defect until she tripped and fell.

At the close of plaintiff's case, the city demurred to her evidence upon the ground that it failed to establish a cause of action in favor of plaintiff and against the city. The demurrer was argued and overruled.

Following the overruling of its demurrer, the city presented its evidence in full after which the jury was instructed by the court and special questions were submitted. After deliberating for approximately one full day, the jury advised the court it was unable to agree upon a verdict and, being satisfied there was no probability of its reaching a verdict, the court announced that it should be discharged from further consideration of the case. However, prior to declaring a mistrial and placing the cause on the docket for a new trial, the city renewed its demurrer to the plaintiff's evidence upon the same ground as previously urged, i. e., that plaintiff's evidence did not prove a cause of action in her favor and against the city, which was overruled. Thereafter, the court declared a mistrial and discharged the jury.

The city first specifies as error the overruling of its demurrer to plaintiff's evidence. Under the well-established rule of this court, the city is not now in a position to urge the trial court erred in that respect under the particular facts of this case. As indicated, the city demurred at the close of plaintiff's evidence and the trial court overruled the demurrer. Thereafter, the city proceeded to introduce its evidence and rested, and...