Grantham v. City of Topeka

• Decision Date: 05 March 1966
• Docket Number: No. 44368,44368
• Citation: 411 P.2d 634,196 Kan. 393
• Parties: Beulah E. GRANTHAM, Appellant, v. The CITY OF TOPEKA, Kansas, Appellee, Glenda Huntsman, a Minor, and George Stanley.
• Court: Kansas Supreme Court

Page 634

411 P.2d 634

196 Kan. 393

Beulah E. GRANTHAM, Appellant, v. The CITY OF TOPEKA, Kansas, Appellee, Glenda Huntsman, a Minor, and George Stanley.

No. 44368.

Supreme Court of Kansas.

March 5, 1966.

Rehearing Denied April 6, 1966.

Syllabus by the Court

1. A city rests under the positive legal duty to keep its streets in a condition reasonably safe for their intended use, and it is liable in a civil action for injuries resulting from neglect to perform this duty.

2. Means selected by the state or a city in the control and regulation of traffic under the police power is a governmental function.

3. A city is not liable for the negligent acts of its officers or employees in the performance of a governmental function unless such liability is imposed by law. An exception to this general rule is recognized with respect to defects in public streets on the theory they are necessary for the public use at all times and under all conditions.

4. To be actionable, a defect in a street must be a condition or object therein which makes the street unsafe and dangerous for travel and use and is the legal cause of the injury of which complaint is made, following Loftin v. City of Kansas City, 164 Kan. 412, 190 P.2d 378.

5. A street, like a public highway, is the entire way between the property lines of the abutting owners, the control and maintenance of which is vested in the governing body of the city.

6. A city ordinance which designates streets as one-way through streets and requires the Traffic Engineer and the Chief of Police to place and maintain a stop sign and a one-way sign on each and every street intersecting a one-way through street, is designed to expedite traffic insofar as speed is consistent with safety, and to protect travelers on intersecting and through streets from the dangers of collision.

7. Where a city exercises its discretionary right by ordinance and designates streets as one-way through streets and requires the Traffic Engineer and the Chief of Police to place and maintain a stop and one-way sign on each and every street intersecting the through streets, the sign becomes an important part of the physical appurtenances of the street, and when knocked down or bent over so as to serve no purpose to regulate traffic or warn and command persons traveling on the through street to stop before proceeding into the intersection of another one-way through street, constitutes a street defect and must be treated similar to other defective conditions in the street.

8. In an action to recover damages from the city of Topeka for injuries sustained in an automobile collision at an intersection of two through streets under conditions described in paragraph 7 of the syllabus, the record is examined and, as more fully set forth in the opinion, it is held: Whether the city's failure to replace or warn concerning the knocked down or bent over stop and one-way street sign during a 20-hour period of time was negligence, and whether the knocked down sign was the proximate cause of the plaintiff's injuries, are questions of fact to be determined by a jury, and the district court erred in sustaining the city's motion for summary judgment.

Edwin D. Smith, Topeka, argued the cause, and David H. Fisher, Donald Patterson, C. K. Sayler, and Jack L. Summers, Topeka, were with him on the briefs, for appellant.

Donald S. Simons, Asst. City Atty., Topeka, argued the cause, and John W. Lewis, City Atty., Gary A. Savaiano, William B. McCormick and William L. Harris, Jr., Topeka, were with him on the briefs, for appellee.

FATZER, Justice.

The point at issue in this appeal is whether a knocked down or bent over stationary stop and one-way street sign, installed by the city in the street at the intersection of two designated one-way through streets, constitutes a street defect under Kansas law. For reasons hereafter stated, we hold that it does.

The plaintiff, Beulah E. Grantham, commenced this action against the city of Topeka and Glenda Huntsman and George Stanley, the driver and the owner, respectively, of the automobile which collided with the plaintiff's automobile as hereafter stated. The city filed a separate answer which denied all liability for plaintiff's injuries and damages, and subsequently filed a motion for summary judgment contending as a matter of law, it was immune from tort liability. The motion was heard upon the facts admitted by the pleadings and the city's answers to interrogatories served by the plaintiff pursuant to K.S.A. 60-233. The district court sustained the motion upon the ground that the miantenance of stop and one-way street signs is a part of the regulation of traffic falling within the police power of the city and is, therefore, a governmental function for which the city cannot be called to account.

There is no dispute as to the facts, and they are briefly summarized: On December 12, 1962, the plaintiff was driving north on Tyler Street when her automobile collided with an automobile driven by Glenda Hunstman, traveling east on Huntoon Street. The collision occurred at approximately 11:45 a. m. in the northeast quadrant of the Tyler-Huntoon intersection. Tyler is a one-way through street northbound and Huntoon is a one-way through street eastbound. Both streets are so designated by ordinances of the city of Topeka, and are protected from cross-street traffic by stop signs for several blocks either side of the intersection. Prior to the time of plaintiff's accident, the city had placed in Tyler Street a stationary stop sign which also had affixed to it a one-way street sign, requiring north-bound Tyler Street traffic to stop before proceeding into the intersection and indicating that Huntoon was a one-way east-bound street. The plaintiff was unfamiliar with the intersection, having never traveled north on Tyler prior to the accident. When she entered Tyler Street from an intersecting east-west street several blocks south of the intersection, she was required to stop before proceeding north on Tyler.

On December 11, 1962, another accident occurred at the Tyler-Huntoon intersection at about 3:00 p. m. in which the stop and one-way street sign was knocked down or bent over so that it could not be seen by a driver of a northbond automobile on Tyler.

The Topeka police department investigated the accident of December 11, 1962, and the admissions of the city established that it had notice of the defective stop and one-way street sign from 3:11 p. m. on that date, to 11:45 a. m. on December 12. No other sign was placed at the intersection for more than twenty hours prior to plaintiff's accident, during which period of time the stop and one-way street sign was not in place. Between 1:00 p. m. and 3:00 p. m. on December 12, 1962, following the plaintiff's accident two members of the traffic engineering department removed the damaged sign and installed a new stop and one-way sign at the intersection.

Section 26-801 of the Code of the City of Topeka, 1963, and stipulated by the parties as being in effect on December 12, 1962, reads:

'(a) Those streets and parts of streets described in the schedule appearing as Section 2 of this ordinance ([26-802] designating Tyler and Huntoon and other streets as one-way streets), are hereby declared to be through streets, except at those intersections where the traffic on the through street is controlled by traffic signals or stop signs. It shall be the duty of the City Commission to designate on which of two through streets a stop sign or signs shall be placed and maintained.

'(b) Whenever any through street shall have been designated by ordinance, it shall be the duty of the Traffice Engineer to place and maintain a stop sign on each and every street intersecting such through street or intersecting that portion thereof described and designated as such by any ordinance, unless traffic at any such intersection is controlled at all times by traffic-control signals.'

Section 26-701 reads:

'(a) Whenever any street in the city shall have been designated as a one-way street or alley, by resolution of the City Commission, the Chief of Police shall place and maintain signs giving notice thereof. No regulation of traffic shall be effective unless and until such signs are in place. Signs indicating the direction of lawful traffic movement shall be placed at every intersection where movement of traffic in the opposite direction is prohibited.'

The plaintiff's suit was not brought upon the theory that the city failed to properly regulate traffic, or that it failed to exercise its discretionary right to establish traffic-control regulations at dangerous intersections, or to erect or not erect, or to remove, stop signs by ordinances duly enacted. The action was based upon negligence on the part of the city of Topeka for breach of its legal duty to keep its streets in a condition reasonably safe for their intended use. The plaintiff claims that the failure of the city to maintain the stop and one-way street sign, after having notice that it was knocked down or bent over, constituted a street defect against which the defense of governmental immunity does not apply. She further claims that the failure of the city to replace within a reasonable time or warn concerning the sign was neglience on its part, and contends the district court erred in failing to hold that the issues of the negligence of the city in failing to replace or warn concerning the sign, notice of the defective street, and proximate cause, were questions of fact to be determined by a jury.

The plaintiff's first contention that the maintenance of stop and one-way street signs is not a part of the regulation of traffic and hence is not a governmental function, cannot be sustained. This court has consistently held that the legislature has plenary power over streets and highways, which may be exercised by the state, or delegated to local political subdivisions or municipalities in the manner...