Martin v. The City of Columbus

• Decision Date: 10 October 1914
• Docket Number: 19,014
• Citation: 93 Kan. 79,143 P. 421
• Parties: RALPH E. MARTIN, Appellee, v. THE CITY OF COLUMBUS, Appellant
• Court: Kansas Supreme Court

143 P. 421

93 Kan. 79

RALPH E. MARTIN, Appellee, v. THE CITY OF COLUMBUS, Appellant

No. 19,014

Supreme Court of Kansas

October 10, 1914

Decided July, 1914.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Allegations and Proof--Variance. Where it is contended that the collision of the left wheels of a vehicle with a defective crossing upset the wagon and caused an injury, and the jury find against the contention, the fact that the right wheels did strike the crossing is immaterial if the crossing was not defective at that point.

2. TRIAL--Answer "Don't Know" to Special Question Construed. The decision in Kalina v. Railroad Co., 69 Kan. 172, 76 P. 438, declaring the effect of the answer "Don't know" returned by a jury to a special question is followed.

3. NEGLIGENCE--Defective Street Crossing--Opinion Evidence Incompetent. In the trial of an issue arising upon a charge of negligence of a city in maintaining a defective sidewalk crossing in an improved street, a description of the street, the crossing, and other objects or things affecting travel at that point, together with the particular use made of the street and crossing at the time, were matters within the comprehension of a jury, affording sufficient means of information concerning the reasonable safety of the crossing. The opinion of a witness who has constructed or repaired such crossings elsewhere that it was not in proper condition, or what repairs were required to make it safe, should not be admitted.

4. TRIAL--Instructions Relating to Negligence. Instructions given and requests for others are examined and commented upon.

Al. F. Williams, A. H. Skidmore, and S. L. Walker, all of Columbus, for the appellant,

Charles Stephens, E. V. McNeill, and C. A. McNeill, all of Columbus, for the appellee.

Benson J. Johnston, C. J. dissenting. Mr. Justice Smith and Mr. Justice West concur in this dissent.

OPINION

BENSON, J.

This appeal is from a judgment awarding damages for personal injuries suffered from defects in city streets.

The plaintiff, chief of the city fire department, with four firemen in a fire wagon drove west on Maple street. The team while running was turned abruptly south at the intersection of Florida avenue. The wagon overturned at a stone sidewalk crossing over Florida avenue on the south side of Maple street just after the turn was completed. The plaintiff was thrown to the ground and injured. The wagon was being driven to a fire, and the plaintiff and his companions were in the line of duty.

After stating the location of the streets, the petition alleges the existence of the stone crossing over Florida avenue and alleges that it was "in a dangerous and unsafe condition in that, for a distance of about ten feet east and west and at the place where the traveling public drove over same, it stood about eight inches higher than the surface of the street north of same and adjacent thereto." This is followed by a description of a wooden culvert about thirty feet long, crossing the traveled way of Forida avenue, parallel with the crossing and about fifteen feet north of it. It is next alleged that "just south of and near the west part of its said culvert" the city had negligently allowed a part of the avenue between the culvert and crossing "to remain sunken and low, therefore dangerous and unsafe." In describing the disaster the petition states: "While said team was being turned . . . from said Maple avenue and going in southwesterly direction so as to swing south on said Florida avenue which was the proper route to said fire, the right wheels of said tall fire wagon dropped into said dangerous and unsafe low depression over and just south of said west part of said culvert, and almost instantly the left wheels of said fire wagon struck said dangerous and unsafe high prominent part of said sandstone sidewalk, which dropping down of said right wheels into said dangerous and unsafe depression over and just south of said west portion of said culvert and said throwing up and raising of said left wheels, which struck said high portion of said sandstone sidewalk or crossing near the west end of said high place in said walk, overbalanced said wagon so that while still going down said Florida avenue it ran for several yards . . . on its two right wheels, and finally turned over on its right side at a point close to the west side of Florida avenue and about five or ten feet south of said sandstone sidewalk crossing."

Many eyewitnesses, including the men in the wagon, testified to the occurrence as they observed it. From their testimony it appears that the team was running at the usual high speed incident to such service; that the turn was abruptly made; that the left or east wheels of the wagon by its tipping to the west and right left the ground; that the right wheels cut into the ground, making a considerable indentation, called by some of the witnesses, a furrow; that these wheels were west of the usual beaten track which covered about eight feet of the width of the traveled part of the street; that where the right wheels struck the crossing it was flush with the adjacent surface of the way, but at the point where the left wheels passed over the crossing the adjacent surface immediately north of it was depressed or sunken for about ten feet along the walk, but the depth of this depression is a matter concerning which the evidence is indefinite. There was a jar or bounce of the wagon at the crossing, the right-hand or "off" horse fell to his knees, the whiffletree on that side broke, the wagon veered to the right or southwest, and turned over a few feet beyond the crossing. The streets were unpaved, the surface being softer west of the beaten path than on the beaten path. The depression along the north side of the crosswalk for the ten feet referred to was in the usual beaten track, but it is not claimed that it extended west to the point where the right wheels were. Several witnesses testified that the depression now referred to was only from one and one-half to two and one-half inches below the general level, and that the edge of the crossing was worn down, making the obstruction slight. There was testimony, however, that the depression was greater, and in the light of the general verdict this testimony must be taken as true. It is difficult to precisely state the condition of the low place described in the petition, just south of the culvert, west of the beaten track, where the right wheels were running. As we have seen, it is alleged that it was "sunken and low, therefore dangerous." One witness called it "a sway in there" sloping down from the crossing five or six feet to the north. Another witness, a brother of the plaintiff, riding in the wagon, said, "Wagon was riding on two wheels when we went over culvert. Did not notice any depression but noticed an angling or incline up the sidewalk." He also said that the width of the wagon was out of the main traveled road. Other witnesses for the plaintiff testified on this subject, one saying "North side of crosswalk extended about three inches above the dirt, and the ground just north of that was still lower." Another said that the crossing was two and one-half inches higher than the surface which sloped back to the culvert. "There was a hole just north where the wagon wheels had dropped down. Crosswalk projected about three inches above dirt and a little north of that where the wheels dropped it was still lower." Another testified that the ground was sloping down from the crossing, which was two to four inches above the surface, to the culvert. "Q. There wasn't any big hole there. A. Not that I saw. Q. Well, you know there wasn't. . . . A. Well, we looked that over." Another said, "The walk stuck up some three or four inches above the dirt and just north of that where the wheels struck it was an inch and a half or two inches lower."

Neither in the petition, nor in the testimony, aside from that of one witness, is the lower surface on the west side of Florida avenue south and near the west end of the culvert referred to as a hole, and while so characterizing it his testimony showed only a concave surface or depression in the surface which sloped generally from the crossing to the culvert, and this it is believed is all that the plaintiff claims. It is said in his brief:

"All of the evidence of plaintiff's witnesses and most of the witnesses for defendant testified that there was a slope from the cross-walk down to the culvert and that the wear from travel, rain and wind had cut it out that full distance, and if the general surface all along north of the cross-walk sloped north toward the culvert and this same slope was in the regular traveled driveway it could not be other than low where the west wheels of the wagon passed south of the culvert. Guy Mitchell said, 'The track north of this walk there was a sway in there from this little culvert.'"

While the existence of the depression or concave surface is alleged as a ground of negligence, the case was tried and instructions were given and the argument is presented here upon the theory that its existence accentuated or made dangerous the protruding crossing in the beaten track which the left wheels passed over and which it is contended was the proximate cause of the injury, that is, that the right wheels falling to a lower level in this depression, the left wheels immediately striking the crossing gave the vehicle a wrench or turn by which it was overturned.

In instructing the jury the court said:

"Twelfth. It was the duty of the city to keep its streets, alleys and sidewalks in a reasonably safe condition for public travel and firemen in the discharge of...