Loftin v. City of Kansas City

• Decision Date: 06 March 1948
• Docket Number: 36982.
• Citation: 164 Kan. 412,190 P.2d 378
• Parties: LOFTIN v. CITY OF KANSAS CITY
• Court: Kansas Supreme Court

190 P.2d 378

164 Kan. 412

LOFTIN v. CITY OF KANSAS CITY

No. 36982.

Supreme Court of Kansas

March 6, 1948

Appeal from District Court, Wyandotte County Division No. 2; Willard M. Benton, Judge.

Action by Estella Loftin against the City of Kansas City for damages alleged to have been sustained by plaintiff because of a defect in a street of defendant city. Judgment for plaintiff and defendant appeals.

Reversed and remanded with instructions to grant a new trial.

WEDELL and SMITH, JJ., dissenting in part.

Syllabus by the Court

1. 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.

2. The record examined in an action for damages for injuries sustained because of a defect in the street, and held, that under plaintiff's evidence, it may not be said as a matter of law there was no defect in the street, nor that the city had no notice thereof nor that the plaintiff was guilty of negligence which contributed to her injuries.

3. The record further examined, and held, the trial court erred in denying the city's motion for a new trial on the ground of misconduct of counsel for the prevailing party.

4. The record further examined, and held, there was no error in the trial court's ruling on the city's motion for judgment non obstante veredicto, and that its ruling on the motion to set aside the jury's answers to special questions is moot.

James H. Barnes and William H. Towers, Deputy City Attys. (Alton H Skinner, City Atty., and C. W. Brenneisen, Jr., Joseph A Lynch and Russell L. Stephens, Deputy City Attys., all of Topeka, on the brief), for appellant.

Charles S. Schnider, of Kansas City (Joseph Cohen and Sol M Weinstein, both of Kansas City, on the brief), for appellee.

THIELE Justice.

Plaintiff commenced this action to recover for damages alleged to have been sustained by her because of a defect in a street of the defendant city. Issues were joined and as a result of trial, the jury returned a verdict in favor of plaintiff. Defendant's motion for a new trial was denied and it appeals.

Omitting formal allegations it was alleged in the petition that on January 5, 1945, at 10:00 o'clock p. m. plaintiff was walking eastwardly on the north side of Freeman Avenue and when she reached a point about in front of 1134 Freeman Avenue, she was caused to trip and stumble over an iron water shutoff box about four inches in diameter, located at the point mentioned, which box was suffered and permitted to protrude above the level of the unpaved street about four or five inches, and she was caused to fall and to suffer a dislocation of the second toe of her left foot and various bruises and contusions over her body, and that her injuries were due to and caused by the negligence of the city in that it suffered the street, at the point, to be in dangerous and defective condition in that it permitted the water shutoff box to be and remain protruding four or five inches above the level of the street, in failing to repair the defect, in failing to barricade it or to give warning when the city knew of the defect. She further alleged that prior to the accident she was a strong able-bodied woman earning $35 a week as an insurance agent and as a result of the accident she had lost her earnings from employment. She also alleged that on February 8, 1945, she had filed her claim with the city clerk and a copy was attached as an exhibit. It needs no particular mention. She prayed for damages in the sum of $5,000.

The gist of the city's answer was a general denial and a plea of contributory negligence.

Before reviewing the evidence we may say that from the abstracts and briefs we glean the following: Freeman Avenue runs east and west and in the block between Eleventh and Twelfth Streets, the east half is paved and the west half, which slopes sharply downward to the west, is unpaved, and in that portion there are no sidewalks or curbings and no so-called parkings. On the south side of the west half of the block there are no houses, but on the north side there are six or seven houses of which No. 1134 is one. The water shutoff box mentioned in the pleadings and evidence was installed in 1923 and in 1927 the water main was lowered but the box was not disturbed. The box is located in the street about eleven to fifteen feet south of the property line of 1134 Freeman Avenue.

Plaintiff as a witness in her own behalf testified as to her occupation as a life insurance solicitor and that her average earnings were $35 per week; that on the night of January 5, 1945, she went to 1146 Freeman Avenue to collect an insurance premium and from there she went to 1138 Freeman Avenue to visit a niece and then called a taxicab to go home. When she heard the horn honk she started to the cab, walking east on the north side of the street. It may here be said that other evidence disclosed taxicabs would stop on the pavement in the east half of the block and users would go to them. As plaintiff proceeded east and when she got in front of 1134 Freeman she struck her foot against something and fell. It was dark but upon examination she discovered she had stumbled over a water sutoff box about five or six inches in diameter and protruding out of the ground four or five inches. She proceeded to the taxicab and went home where she discovered her left foot was swollen. The next day she called a doctor. She further stated that at the time she fell she was not running but was walking 'kind of fast' and that she 'didn't just poke along.' She later testified that she had been down the street in question on at least two occasions to visit her niece; that she had been there in the daytime and knew that the street was rough; that it was a dirt street and there were no sidewalks; that on the night in question she did not keep her eyes down but walked along as usual. Her doctor testified that the second toes of plaintiff's left foot had been dislocated, the bone pushed out of its socket, and as to other details of her injuries. Another witness testified she had lived at 1146 Freeman all her life and remembered when the water cutoff box was installed; that the box was dark and protruded above the ground several inches, and that it had been in that condition 'since back in the twenties.' She further testified that the road was a dirt road and water washed down it making ruts and depositing gravel and 'stuff' in the street; that the city had graded the road some time prior to January, 1945, and put in some chat. The testimony of other witnesses corroborating what has been stated need not be reviewed. Several photographs were also received in evidence. They show that from the fronts of the various residences south there is nothing to indicate property lines nor where the boundaries of the street may be, no parkings, no curbings, no pathways for either pedestrian or vehicular traffic; that the street is generally rough and rutted, and, as far as photographs can disclose, that pedestrians and vehicles moved over all parts of the north side of the street. When the plaintiff rested, the city demurred, contending there was a failure to show that the city had notice, either constructive or actual, of the alleged defect; that the alleged defect was not such as to be actionable and that the evidence disclosed plaintiff's contributory negligence. This demurrer was overruled and the trial proceeded. In view of the assignments of error, it is not necessary that we review the city's evidence. Under instructions, of which no complaint is made, the cause was submitted to the jury. Argument of counsel after the instructions had been given and objections thereto, will be mentioned later. The jury returned a verdict for plaintiff for $1,250 and answered special questions which will be referred to later. The city's motions for a new trial, for judgment non obstante and to set aside special findings of the jury were each denied, and the appeal followed.

The demurrer to the evidence was based on three grounds which have previously been stated. The city argues together its contentions that the city had no notice of any defect and that there was no actionable defect in contemplation of law. In discussing the contentions made we need not state, but do follow our oft repeated rule, as to how the evidence is to be considered. See e.g. Trezise v. Highway Comm., 150 Kan. 845, Syl. 1, 96 P.2d 637. Neither do we think it necessary to review our numerous decisions holding that certain conditions or objects did or did not constitute defects. Lists of many of these decisions may be found in West's Kansas Digest, Vol. 11, 'Words & Phrases' under subtitles of 'Defect' and 'Defective Highway', and in Hatcher's Kansas Digest under the same general title and subtitles. For present purposes we shall define a defect in the street as being 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. In discussing whether the mere placing of the shutoff box in the street constituted a defect, the city directs our attention to authorities that the city may devote portions of the street for sewers, mains for water and gas and other purposes useful and convenient to the public. We need not review them for it may be conceded our statutes recognize that that may be done, instances being too numerous to mention. It may be said that the record discloses the water shutoff box was originally installed in 1923 under permit issued by the water department of the city and that in 1927 the city lowered the water main but did not disturb the shutoff box, and that at some later date...