Gould v. City of Topeka

• Decision Date: 09 October 1884
• Citation: 32 Kan. 485,4 P. 822
• Parties: LUELLA L. GOULD v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

4 P. 822

32 Kan. 485

LUELLA L. GOULD v. THE CITY OF TOPEKA

Supreme Court of Kansas

October 9, 1884

Error from Shawnee District Court.

ACTION brought by Luella L. Gould against The City of Topeka, to recover damages for personal injuries alleged to have been caused by reason of the unsafe and dangerous condition of a certain public street in that city. Trial at the April Term 1883, and verdict and judgment for the defendant. The plaintiff brings the case to this court. The opinion states the facts.

Judgment reversed and remanded.

W. P Douthitt, and G. N. Elliott, for plaintiff in error.

A. B Quinton, and J. D. McFarland, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought by Luella L. Gould against the city of Topeka, to recover damages for personal injuries alleged to have been caused, on the night of August 21, 1879, by reason of the unsafe and dangerous condition of a public street in the city of Topeka, named "Kansas avenue." At that time the plaintiff was riding in a carriage on said street, up an embankment which leads to the south end of the bridge which spans the Kansas river, and the carriage was overturned and the plaintiff thrown therefrom and down the embankment on the east side thereof, and the injuries of which she now complains were thereby produced. The only wrong alleged against the city is the construction and permitted existence of the said embankment, which is alleged to be high and narrow, and the negligence of the city in permitting it to remain unprotected and not guarded by any railings or other barriers, and without street lamps or other lights during the night. The case was tried by the court and a jury, and the court gave the following (among other) instructions:

"13th. It can make no difference in this case whether the made and traveled portion of the street was wide enough to accommodate the ordinary traffic and travel over the same, unless its narrowness was the cause of the plaintiff's being driven over the narrow track, and that such narrowness was caused by the negligent grading and filling of Kansas avenue, at the place where the accident occurred.

"14th. I further instruct you, gentlemen, that such negligence cannot be predicated upon the plan of a public work, but it may be predicated upon the construction and subsequent management of such a work. If therefore you find from the evidence, that the defects complained of in the plaintiff's petition did in fact exist in Kansas avenue, at the place where it is alleged the accident happened to the plaintiff, [and] were defects existing in the plan of grading and filling Kansas avenue, as adopted and executed by the proper authorities of the city, then the plaintiff cannot recover in this action. But if you find from the evidence, that such defects [arose] from a negligent and careless construction of the grading and filling, after the plan of construction had been fixed upon, then the plaintiff may recover, provided the injuries complained of were caused directly by such last-named negligence, and the plaintiff, and the driver of the team in which she was riding, were themselves without fault contributing to such injuries.

"15th. If you find from the evidence, that at the time of the alleged accident, Kansas avenue, at the place where such accident is alleged to have occurred, was in a defective condition, and that such defective condition was caused by said avenue having got out of repair, either by reason of travel upon it, or otherwise, after the completion of the work of grading and filling, and not by reason of negligence in the grading and filling thereof as originally done, then the plaintiff cannot recover in this action.

"16th. If the work of grading and filling Kansas avenue, at the place of the accident, was done by the direction of the defendant, and after its completion the defendant, with knowledge of the plan on which said work had been done, accepted it by permitting it to stand, and to be used as a public street, this would be a ratification of the plan of said work, and would in effect be the same as though the plan of said work had first been adopted, and the work executed in accordance with said plan so adopted."

Several other instructions were given, but these are the only ones of which the plaintiff now complains. The plaintiff also asked the court to give several other instructions, which the court refused, and of this refusal the plaintiff now complains; but we do not understand that any question is now raised, upon the instructions refused, different from or in addition to the questions raised upon the instructions given. The jury found a general verdict in favor of the defendant, and the plaintiff moved the court for a new trial, upon various grounds, which motion was overruled, and the court rendered judgment in favor of the defendant, and against the plaintiff for costs; and this judgment the plaintiff now seeks to have reversed.

That a city is liable for any injury to private individuals, caused by the negligence of its officers in not keeping its streets in a safe and proper condition, has been maintained and promulgated by the supreme court of Kansas nearly ever since its first organization, and such is now the unquestioned doctrine in this state; and nearly all the courts of last resort in all this country also recognize, sanction, approve and promulgate this very same doctrine. It is believed that the decisions of the supreme courts of New Jersey, Michigan and Texas furnish the only exceptions to this almost universal agreement among the courts. (Pray v. Mayor, &c., 32 N.J.L. 394; Detroit v. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id. 483; City of Navasota v. Pearce, 46 Tex. 525.)

But it is claimed by counsel for the defendant that municipal corporations are endowed with various powers, among which are, first, those which are discretionary and judicial, quasi-judicial or legislative in their character; and, second, those which are mandatory and ministerial in their character; and that while municipal corporations may be held liable for the wrongful exercise or the wrongful failure to exercise those powers which are mandatory and ministerial in their character, such as negligently failing to keep their streets in safe and proper condition, yet that no liability can be incurred by the exercise or failure to exercise those other powers belonging to the first class above mentioned, as where the city orders or plans a street improvement, or a change or alteration of such street, and the work is done accordingly, even if the exercise of such powers or failure to exercise the same should be ever so wrongful. It is claimed that cities may adopt a plan for public improvements or ratify such plan after the improvements have been made, and that the adoption or ratification of such plan will come within the first class of powers above mentioned; that no negligence can be predicated upon the adoption or ratification of such plan, nor upon the improvements themselves if made in accordance with the plan; nor can the city be held liable for any injuries to individuals resulting from the plan, or from the improvements if made in accordance with the plan, even if the same were ever so defective and dangerous; and it is further claimed that the city can be held liable only for the negligent construction of the public works, or the negligent management and control thereof after the same have been made; and this for the reason that these matters, and these only, can possibly come within the second class of powers above mentioned.

We agree with counsel in their division of the powers of municipal corporations, and generally that cities are not liable for the exercise or non-exercise of the first class of powers above mentioned; but we do not agree with counsel in their application of the rule with respect to injuries to private individuals, resulting from the defective and dangerous condition of the public streets of cities. In our opinion, a city has no more right to plan or create an unsafe and dangerous condition of one of its public streets than it has to plan and create a public or common nuisance; and it is admitted that it has no right to do this. (2 Dillon's Mun. Corp., 3 ed., § 660.) The rule contended for by counsel for the defendant has been applied to various cases, as follows: It has been applied to city improvements, and the cities held not liable, in cases where the property of individuals outside of the streets has been flooded and injured on account of the insufficiency of sewers or drains. (City of Atchison v. Challiss, 9 Kan. 603; Steinmeyer v. City of St. Louis, 3 Mo.App. 256; Mills v. City of Brooklyn, 32 N.Y. 489; Darling v. Bangor, 68 Me. 108; Child v. City of Boston, 86 Mass. 41; Van Pelt v. City of Davenport, 42 Iowa 308.)

The rule has also been applied, and a city held not liable, in a case where water on adjoining property was polluted by means of a sewer or drain. (Merrifield v. Worcester, 110 Mass. 216.) The rule has also been applied, and a city held not liable, in a case where, by the digging of a ditch, the rent of a person's house was diminished. (Lambar v City of St. Louis, 15 Mo. 610.) And also to the same effect where, by the digging of a ditch and the construction of a culvert on the sidewalk, the plaintiff's abutting property was damaged. (White v. Corporation of Yazoo City, 27 Miss. 357.) The rule has also been applied, and a city held not...