Holitza v. The City of Kansas City

• Decision Date: 12 December 1903
• Docket Number: 13,379
• Parties: FRANK HOLITZA v. THE CITY OF KANSAS CITY, KANSAS
• Court: Kansas Supreme Court

74 P. 594

68 Kan. 157

FRANK HOLITZA v. THE CITY OF KANSAS CITY, KANSAS

No. 13,379

Supreme Court of Kansas

December 12, 1903

Decided July, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgement reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITIES AND CITY OFFICERS -- Excavations in Streets. It is the duty of a city to keep its streets in a reasonably safe condition for public travel, and to that end to place guards, signals or lights to protect travelers from injuries from an excavation in the street, whether made by the city or by an individual.

2. CITIES AND CITY OFFICERS -- Actual or Imputable Notice Necessary. A city is not an insurer of the safety of its streets, and if the streets become defective without its fault it is not responsible, unless it had actual or imputable notice and failed to use diligence in obviating and removing the danger.

3. CITIES AND CITY OFFICERS -- Question for Jury. What time is sufficient to charge a city with knowledge of a dangerous defect in a street is ordinarily a question of fact for the determination of a jury.

4. CITIES AND CITY OFFICERS -- Facts Stated, and Notice Held a Question for Jury.

An excavation was made on one of the most frequently traveled streets of a city by an abutting owner who was connecting his house with a water-pipe, and it remained open for two or three days. A traveler, who was passing along the street at night and about an hour after it became dark, drove into the unguarded excavation. No lights had been placed there on that night, although the excavation had been guarded by a light on previous nights. Held, that the question of whether the city had notice of the defect, or whether the defect had existed for such a length of time that notice should be imputed to it, was one for a jury to decide, under proper instructions from the court.

L. W Keplinger, and C. D. Dail, for plaintiff in error.

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

JOHNSTON C. J. Al Justices concurring.

OPINION

JOHNSTON, C. J.:

Frank Holitza and his wife were injured by reason of an unprotected excavation in one of the much-traveled streets in Kansas City, and he brought this action to recover the damages so sustained. After the plaintiff's testimony was received, the court, on a demurrer, held the evidence to be insufficient to establish a cause of action, the insufficiency being the lack of notice to the city of the defect in the street. The case comes to us on a record wherein the following facts are recited:

"There was no evidence to show that the defendant city permitted, or had anything to do with, the making or maintaining of the excavation mentioned in the street, but there was evidence as to all other matters sufficient to entitle the case to go to the jury, unless it was upon the question of notice to the city of the defect, and as to that question there was evidence showing that one Dean, who was building a house on the north side of, and fronting, Osage avenue, in the said city of Kansas City, Kan., the same being one of the most frequently traveled streets in the city, employed a plumber to do the necessary plumbing; also, that such plumber, in order to connect the water-pipes extending along Osage avenue, made an excavation in front of the Dean property; that on the day of the accident, the necessary connections having been made, this excavation had been filled up, with the exception of from eight inches to twelve inches also that said excavation was about eighteen inches wide and thirty inches long, and the workmen, at the time of quitting work (a little before...