Lambel v. The City of Florence

• Decision Date: 12 January 1924
• Docket Number: 24,878
• Citation: 222 P. 64,115 Kan. 111
• Parties: LUCETTA AMY LAMBEL, by her next friend, ANDREW J. LAMBEL, Appellant, v. THE CITY OF FLORENCE, and THE FLORENCE HOTEL COMPANY, Appellees
• Court: Kansas Supreme Court

222 P. 64

115 Kan. 111

LUCETTA AMY LAMBEL, by her next friend, ANDREW J. LAMBEL, Appellant, v. THE CITY OF FLORENCE, and THE FLORENCE HOTEL COMPANY, Appellees

No. 24,878

Supreme Court of Kansas

January 12, 1924

Decided January, 1924.

Appeal from Marion district court; CASSIUS M. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--City Permitting Building Material to Obstruct Sidewalk and City Street--Automobile Collision--Building Material not the Proximate Cause of the Automobile Collision. A city permitted a hotel building company to pile building materials on a corner lot at the northwest corner of a street intersection. The materials covered the sidewalk on the south and on the east and encroached into the street on the east, and were piled so high as to cut off the view of automobiles driving south on one street and driving east on the other street. These obstructions to the view were negligently permitted to remain for two months after the hotel construction work had been abandoned and was not to be renewed. Plaintiff was riding south in an automobile driven by another person with alleged due care. After passing beyond the obstruction to her driver's view her car was struck by another automobile being driven eastward on the south side of the intersection. Held, that the negligence of the city in permitting obstructions to the view to remain at the northwest corner of the street intersection and thereabout was not the proximate cause of the plaintiff's injuries, that the city's negligence only furnished one of the conditions, that the proximate cause was the collision and the incidents immediately pertaining thereto, and the city's demurrer to the plaintiff's petition was properly sustained.

W. H Carpenter, and W. R. Carpenter, both of Marion, for the appellant.

J. E. Hargett, of Florence, and Braden C. Johnston, of Marion, for the appellees.

OPINION

DAWSON, J.:

The plaintiff was injured in a collision of two automobiles at a street intersection in Florence, and sued the city for damages on the ground that an obstruction to the view which the city had negligently permitted near by had caused the accident.

The city's demurrer to plaintiff's amended petition was sustained, and the only question for review is whether a cause of action was stated.

Plaintiff's original petition had joined the driver and the owner of the other automobile as defendants with the city and the hotel company, and had charged the driver of the other car, Laura Haren, with negligence; but later the owner and driver of the other car were dismissed from the case without prejudice; and plaintiff filed an amended petition narrating the circumstances with much detail. She alleged that Main street in the city of Florence ran north and south and Third street ran east and west; that the city owned a town lot at the northwest corner of the intersection of Third and Main streets, which under some sort of contract between the city and the hotel company was to be the site of a hotel building, and that the hotel company brought together a large quantity of building materials and piled them on the sides and front of the town lot and into Main street so high as to cut off the view from automobiles approaching the intersection on Main street from the north, and to cut off the view from automobiles approaching from the west; and that the construction of the hotel had been abandoned and all work thereon had ceased for more than two months, and during that time the city and hotel company both knew that the construction work had been abandoned and was not to be completed. Plaintiff also alleged that while she was riding southward on the west side of Main street and approaching the intersection of Third street in an automobile lawfully operated by one Tillie Lambel, neither she nor her driver could see persons or automobiles approaching from the west on Third street because of the obstructions negligently piled and suffered to remain on the northwest corner of the intersection and in Main street thereat, and when plaintiff and her driver passed the intersection the automobile in which she was riding collided with an automobile coming from the west, driven by Laura Haren, whereby plaintiff was thrown out of her car into the street and injured in certain designated particulars and for which she prayed substantial damages.

The amended petition lacked nothing in the art and skill of pleading, if the material allegations would impose a liability on the city, and these allegations of fact, of course, were admitted to be true by the demurrer.

Were the obstructions to the view the proximate cause of plaintiff's injuries? This is commonly a jury question ( Railway Co. v. Parry, 67 Kan. 515, 73 P. 105), but where the facts are all pleaded with definiteness and precision and admitted by demurrer, it frequently happens that there is nothing to submit to a jury. In Railway Co. v. Columbia, 65 Kan. 390, 69 P. 338, it was said:

"In a case where it is either admitted, or from the facts as found established, that two distinct, successive causes unrelated in their operation, conjoined to produce a given injury, the question of remote and proximate cause becomes one of law for the decision of the court, and not of fact for the determination of the jury, and the determination of this question of law by the...