Neiswender v. Board of Com'rs of Shawnee County
| Citation | 101 P.2d 226,151 Kan. 574 |
| Decision Date | 06 April 1940 |
| Docket Number | 34243. |
| Parties | NEISWENDER v. BOARD OF COUNTY COM'RS OF SHAWNEE COUNTY. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
Where injury results from two or more contributing, successive, and related acts or events, all acts or events may constitute the "proximate cause" of the injury.
Where two or more contributing, successive, and related acts or events together result in injury, the fact that no culpability may attach to any one in connection with some of those acts or events does not relieve from liability those whose culpability is established as to other contributing causes.
In action against county for death of plaintiff's husband when his automobile broke through railing of county bridge and fell into river after having struck the side of an on-coming automobile and after having been deflected to one side, on ground that railing of bridge was defective and that bridge had no wheel guards, instruction based on theory that either the collision or defective condition of the bridge and not both of such circumstances, could be the proximate cause of the death, was erroneous, and trial court properly granted a new trial.
In action against county for death of plaintiff's husband when his automobile broke through railing of county bridge and fell into river after having struck the side of an on-coming automobile and after having been deflected to one side, on ground that railing of bridge was defective and that bridge had no wheel guards, whether railing was defective was for the jury under the evidence.
In action against county for death of plaintiff's husband when his automobile broke through railing of county bridge and fell into river after having struck the side of an on-coming automobile and after having been deflected to one side, on ground that railing of bridge was defective and that bridge had no wheel guard, whether county had statutory notice of the defective and dangerous condition of the railing was for the jury under the evidence. Gen.St.1935 68-301.
1. Where injury results from two or more contributing successive and related acts or events, all of such acts or events may constitute the proximate cause of the injury.
2. Where two or more such acts or events together result in injury the fact that no culpability may attach to any of the parties in connection with some of such acts or events does not relieve from liability the parties whose culpability is established as to other contributing causes.
3. The record is examined, in an action wherein the plaintiff sought to recover damages for the death of her husband alleged to have resulted from the defective condition of a county bridge, and no error is found.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
Action by Alice Neiswender against the Board of County Commissioners of Shawnee County, Kan., to recover for the death of her husband who was drowned when his automobile broke through railing on defendant's bridge. From an adverse judgment the defendant appeals.
Judgment affirmed.
Paul L. Harvey, of Topeka, for appellant.
Edward Rooney, Jacob A. Dickinson, and Edward Rooney, Jr., all of Topeka, for appellee.
Plaintiff's husband was drowned when his car broke through the railing on a Shawnee county bridge and fell into the Kaw river. In an action for damages, the jury found generally for the county, and answered special questions. The trial court granted a new trial on the sole ground that it had submitted the cause to the jury on a wrong theory of law and was therefore dissatisfied with both the general and special verdicts. Appellant contends that the court was right in the instruction, and appeals from the order granting a new trial. Appeal is also taken from an order overruling defendant's demurrer to the plaintiff's evidence and from an order overruling a motion for a directed verdict.
The essential facts may be briefly stated. On February 8, 1937, Robert R. Neiswender, husband of the plaintiff, Alice Neiswender, was driving his car west across the Sardou bridge, which spans the Kaw river between Oakland and the City of Topeka. The bridge is maintained by Shawnee county. His car struck the left side of a car going east, was deflected to the south, and went through the south railing of the bridge.
The plaintiff alleged that the railing was defective, being improperly constructed, being built of materials of insufficient strength to meet the ordinary requirements of a public bridge, that it had no wheel guards, that the defective condition constituted a danger to the traveling public which had existed and was known to the chairman of the board of county commissioners for more than five days before the accident.
Two questions are presented:
First,--should the order granting a new trial be set aside?
Second,--was the plaintiff's evidence sufficient to take the case to the jury?
The question of appeals from orders granting a new trial was recently considered, in a somewhat similar situation, in the case of Pugh v. City of Topeka, 151 Kan. 327, 99 P.2d 862. The trial court there expressed the opinion that the action had been tried on a wrong theory of law, but also said that it was dissatisfied with the verdict "for many reasons." The law question upon which the trial court commented not being definitely presented, we did not consider it. But in the instant case the sole ground given for granting a new trial was that the case had been submitted upon a wrong theory of law. The law question is clearly raised by the record and will be considered.
The instruction in question reads as follows:
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