Kirkham v. The City of Kansas City

• Decision Date: 10 May 1913
• Docket Number: 18,199
• Citation: 89 Kan. 651,132 P. 160
• Parties: F. M. KIRKHAM, Appellee, v. THE CITY OF KANSAS CITY, Appellant
• Court: Kansas Supreme Court

132 P. 160

89 Kan. 651

F. M. KIRKHAM, Appellee, v. THE CITY OF KANSAS CITY, Appellant

No. 18,199

Supreme Court of Kansas

May 10, 1913

Decided January, 1913.

Appeal from Wyandotte court of common pleas.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PERSONAL INJURIES--Dangerous Approach to Sidewalk--Negligence for the Jury. The testimony fairly tended to show: A sidewalk along the west side of Seventeenth street between Quindaro boulevard and Yecker avenue was laid twelve to eighteen inches lower than the surface of the ground on either side in order to bring it to the established grade. The parking extended five feet west to the street line. The walk had been in this condition for several weeks. A tent meeting had been in progress a short distance west of Seventeenth street for nine days or more, attended daily by from fifteen to seventy-five or a hundred persons. The weeds had been cut or topped, thus marking a route by which these persons went from the tent to the sidewalk. While returning along this route with others from the services on the evening in question the plaintiff's wife fell upon the walk where such route entered the same from the parking on the west thereof, and was injured. No lights, barriers or other means had been provided by the city to protect against accident or injury at the place mentioned. Held, sufficient to go to the jury and to support a general verdict in favor of the plaintiff.

R. J Higgins, city attorney, and W. H. McCamish, assistant city attorney, for the appellant.

L. O. Carter, of Kansas City, for the appellee.

OPINION

WEST, J.:

The plaintiff sued the city for loss of his wife's services occasioned by an injury received by falling upon a sidewalk along Seventeenth street. A tent meeting was being held a short distance west of the street, and returning from services there on the evening in question the plaintiff's wife, in coming from the street line across the parking to the sidewalk, which was twelve to eighteen inches lower than the parking, fell thereon and was injured. The plaintiff recovered and the city appeals and presents the question whether the city owed any duty to the person injured.

It appears that before laying the walk it was necessary to make the depression in order to bring it to grade, and the real question is whether or not the city was liable for failure to guard or protect the place. A park-way of five feet was left between the west line of the street and the sidewalk. The walk had been laid a month or six weeks and the tent services had been held at least nine days when the injury was received. The plaintiff alleged that along the side of the walk weeds had been allowed to grow up and remain, and at the time so concealed the condition and lay of the ground and walk, there being no lights, guard rails, barriers or danger signals, that his wife was caused to fall. The wife testified:

"There was weeds there, had been cut--it seems that the tops had been cut off, but they were almost knee high, struck me along about here, I can remember along about there (indicating), and the dirt and the weeds seemed just to give way under my left foot and let me down on the sidewalk."

The defendant requested an instruction that if the jury were in doubt whether the accident occurred in the manner set forth in the petition, or in some other way, they should find for the defendant, which was refused. The testimony of another witness was that there was no pathway--"just simply cutting the weeds." The jury were instructed that if the condition of the sidewalk and the street adjacent was such as to be dangerous to a person lawfully using the same and had been so for such length of time that the city and its officers could and should have known thereof and negligently failed to remedy such condition, the city would be liable for an injury occurring to persons traveling or going on such sidewalk from another portion of the street, using reasonable care for their own safety; also that if there was a traveled way, public or private, from the lots adjoining on the west into the street sufficiently traveled to cause it to be commonly used for that purpose, which fact was or should have been known to the officers of the city, and they permitted such path to be without lights or danger signals to warn persons using such path, and the plaintiff's wife, using due care, was injured by the ground giving way beneath her feet causing her to be thrown to the sidewalk and injured, the city would be liable. It is complained that this brought into the case an element not found in the petition, and that it also assumed that there was a path. The petition did allege that the city knew or should have known "that persons were continuously passing along and over said points referred to and were liable to be injured thereby. Said City was careless and negligent in not having proper lights, barriers or danger signals or some other means there so as to properly provide for the safety of persons and pedestrians rightfully passing along and over said point and in allowing the weeds to grow up and remain along the sides thereof as aforesaid."

Whether the term point was intended to mean where a path entered the sidewalk is doubtful--but it is fair to assume that persons "continuously passing along and over said points" would naturally cause a path to be worn or marked out there. The record contains sufficient evidence to show that quite a number of persons were passing along together when the injury occurred and the pastor testified that the attendance varied from fifteen to seventy-five or a hundred and "we cut some weeds directly east from the tent so that the people could see the way through them."

Another witness said:

"In coming from the tent to the sidewalk we passed through where the weeds had been cut off, but they were cut high; . . . The weeds were cut down to the sidewalk--that is, the tops were just simply whacked off; the pathway into the tent from the street was just simply cutting the weeds, there was no path."

The verdict then, is supported by proof that a route from the tent to the sidewalk over the five feet of parking had been marked by cutting the weeds, and was used by many persons and had been for nine days or more, and that where this route entered the sidewalk there was a perpendicular drop of twelve to eighteen inches, the place not being guarded in any way.

The city contends that it had a right to lay the walk on the grade of the street and that it was under no more obligation to protect the west line of the walk than the west line of the street, and owed no duty to guard or barricade for the benefit of persons coming from private property to the sidewalk. Authorities are cited to the effect that a city need not provide means of access from private property to its streets, and Mulvane v. City of South Topeka, 45 Kan. 45, 25 P. 217, is referred to as furnishing a similar rule in this state. It was therein decided that it is not the duty of a city to provide means of access from private property to its streets, nor liable for failure to guard its streets from approach at points where such approach is dangerous. The reason stated was that the city has no control over adjoining private property. In City of Olathe v. Mizee, 48 Kan. 435, 29 P. 754, it appeared that the city had left uncovered over night an excavation twenty inches deep and twenty inches wide extending southward from the cross walk, and the plaintiff was injured by stepping aside to let others pass on the cross walk. It was held that she could recover, the city's duty being to maintain all parts of the street intended for travel reasonably safe. A distinction between cross walks and side walks was pointed out.

The case of Langan v. City of Atchison, 35 Kan. 318, 11 P. 38, involved this situation: A billboard negligently and imperfectly constructed on private property and partly supported by studding or uprights nailed to the sidewalk, and being so near to and adjoining the sidewalk as to be dangerously contiguous, was blown down by a strong wind, injuring the plaintiff. The city was held liable. The court said (p. 323) that the city owed the public the duty of keeping its streets and sidewalks in a safe condition for use in the usual mode by travelers and was liable for injuries resulting from the neglect to perform such duties. Certain provisions of the statute were quoted and it was said to be the duty of the corporate authorities to remove or abate any nuisance from the streets or sidewalks, and that under their power to remove nuisances and regulate structures projecting upon or adjoining the street or sidewalk they were bound to protect the walk in question from the imperfectly constructed and insecure billboard. It was said:

"We do not think it is very material whether the billboard was so close to and adjoining the sidewalk as to be dangerously contiguous thereto, or was actually supported by braces or uprights resting upon the south edge of the walk. The liability of the city would be the same in either case." (p. 324.)

The General Statutes of 1909 contain similar provisions relating to cities of the first class. The mayor and council have power to compel owners of property adjacent to walks and ways where dangerous to erect and maintain railings, safeguards and barriers along the same for the protection of the traveling public (§ 900); to regulate or prohibit structures projecting upon, over or...