Kansas City v. Bermingham

• Citation: 45 Kan. 212,25 P. 569
• Parties: THE CITY OF KANSAS CITY v. JAMES S. BERMINGHAM, as Administrator of the Estate of Thomas Sewell, deceased
• Decision Date: 10 January 1891
• Court: Kansas Supreme Court

25 P. 569

45 Kan. 212

THE CITY OF KANSAS CITY v. JAMES S. BERMINGHAM, as Administrator of the Estate of Thomas Sewell, deceased

Supreme Court of Kansas

January 10, 1891

Error from Wyandotte District Court.

THE material facts are stated in the opinion.

Judgment affirmed.

W. S Carroll, for plaintiff in error.

J. O Fife, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

James S. Bermingham, as administrator of the estate of Thomas Sewell, brought this action in the district court of Wyandotte county, against the city of Kansas City, to recover damages for the wrongful killing of his intestate, alleged to have been caused by the negligence of the city, in permitting an excavation in the sidewalk on the west side of James street, and within the corporate limits of the city, to remain unprotected by barriers and lights, or other signals to warn people of the danger of falling into the same. It appears that a building was being erected on the street in question, and an excavation had been made in the sidewalk for an area-way under the same seventy-two feet long, twelve feet wide and seven or eight feet deep, and it is claimed that this excavation was not sufficiently protected, especially upon the south end; the only protection being a board nailed to the side of the building, immediately south of the building, some three feet above the sidewalk and slanting diagonally to the outside line of the curb, a distance of twelve feet. It is claimed that there were no lights or barriers, other than this board, on the south side of the excavation, and that on the night of the 27th of July, 1886, Thomas Sewell fell into this excavation and was killed, from the carelessness and negligence of the defendant below. At the July term, 1887, the action was tried by a jury, and a verdict and judgment were rendered in favor of plaintiff for $ 5,000. The city, claiming that there were errors upon the trial in the district court, brings the case here for review.

I. The first claim made by the city is that there was contributory negligence, without which the injury could not have occurred; and that the verdict and findings were against the evidence and contrary to the law as given by the court. We have carefully considered the entire record in this case, and there is certainly some evidence to support the verdict and the special findings of the jury. One witness testified that he saw the deceased about half-past nine o'clock on the night of the 27th of July; that he was sober and in good health. He was found on the following morning in the excavation dead; and in answer to special questions the jury said that he was not intoxicated on the night of the accident. It was disclosed in the evidence that a bottle was found upon his person, containing liquor, but there is nothing in the record to indicate that he was under the influence of liquor, when last seen on the night in question. There is evidence sufficient in the record to support the findings and verdict of the jury.

II. The plaintiff next complains that the court erred in giving the first and second paragraphs of the sixth instruction, which reads:

"Before the plaintiff can recover a judgment in this action, it must appear by a preponderance of the evidence: (1) That plaintiff's intestate, Thomas Sewell, was killed as the result of a defect, or excavation in the sidewalk on James street in the defendant city, and that such excavation was left in an unsafe condition, and (2) that said city or its officers were negligent in permitting said sidewalk to remain in said unsafe condition at the time said Thomas Sewell is alleged to have been killed. To charge the defendant with negligence, it must appear that the proper officers of the city had notice of the unsafe condition of the sidewalk in time to have prevented the killing of Thomas Sewell by falling into said excavation, or that by the exercise of reasonable and ordinary care and diligence, they could have known of the unsafe condition of said sidewalk in time to have prevented such killing. By reasonable and ordinary care and diligence, is meant that degree of care and prudence which an ordinarily careful and prudent man would reasonably be expected to use under similar circumstances."

Counsel contends that the jury were misled by the court's instruction in calling the opening in...