Norris v. Township

Decision Date10 June 1916
Docket Number20,371
Citation98 Kan. 394,161 P. 582
PartiesGUS NORRIS, Appellant, v. ROSS TOWNSHIP, Appellee
CourtKansas Supreme Court

Decided January, 1916.

Appeal from Cherokee district court; JAMES N. DUNBAR, judge.

Judgment affirmed.

SYLLABUS

SYLLLABUS BY THE COURT.

DEFECTIVE HIGHWAY -- Frightened Horse -- Proximate Cause -- Petition Failed to State Cause of Action. In an action against a township to recover damages for injuries alleged to have been caused by a defect in the highway, it is held that the petition fails to state a cause of action, for the reason that it shows the proximate cause of plaintiff's injury was the frightening of his horse and not a defective condition of the highway.

Charles Stephens, and E. M. Tracewell, both of Columbus, for the appellant.

F. W. Boss, of Columbus, for the appellee.

OPINION

PORTER, J.

In this action plaintiff sued to recover damages for injuries alleged to have been caused by a defective highway. The court sustained a demurrer to the petition, from which ruling the plaintiff appeals.

The highway in question runs east and west. The petition alleged that for several weeks prior to plaintiff's injury a culvert in this highway had been allowed to remain out of repair, so that persons using the highway were obliged to drive around the south end of the culvert, where the ground was about two and one-half feet lower, and that during several weeks travelers had continuously used and made a well-beaten path around the low place and up the embankment to the traveled portion of the highway immediately east and west of the culvert. It is alleged that on the same day plaintiff was injured the township sent its agents and employees to remove the culvert and construct a new one of concrete, and in preparing for this they placed a pile of dirt just south of the old culvert and in the north part of the traveled way around the place, and also placed just west of the culvert a concrete mixer, which they covered with a canvas so insecurely fastened that it flapped in the wind; that on the evening of that day, when it was too dark for him to see an object clearly, he was traveling over the highway in a top-buggy "attached to a kind, road-worthy horse, going west"; that his horse took the traveled way in the well-beaten path "used by vehicles traveling said road." The petition then proceeds:

"When his buggy, so drawn by said horse, reached a point about opposite said culvert the north front wheel of said vehicle ran onto and over said pile of dirt which defendant, its said officer, agents and employees, had on that day placed in said traveled way; that when the north back wheel of said buggy ran up onto said dirt and again tipped said vehicle toward the south, plaintiff looked down, as said hind wheel passed down off said dirt, to see what was causing such tipping of his vehicle, and while in this position the wind from the north flapped the south part of said canvas toward his horse in such a way as was likely to and did greatly frighten same; that when said horse took fright it lunged forward and out of said low place in an angle against and onto said high ground, at said defective place in said highway, so that the right wheels of said buggy went up onto said high embankment before the left wheels touched same, thereby causing said plaintiff to be thrown over toward the left side of his buggy in such a way that he lost his balance in the buggy which caused the lines to slip in his hands and he thereby lost control of his horse which ran to the intersecting section highway just west of said culvert and swung quickly to the south thereon in such a way as to throw this plaintiff, violently and forcibly, against the ground."

After enumerating the "bones, muscles, ligaments, tendons tissues, and nerves" which were torn and strained,...

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11 cases
  • Lemos v. Madden
    • United States
    • Wyoming Supreme Court
    • September 9, 1921
    ... ... ( Kelson v ... Service Co., 94 N.J.L. 527, 110 A. 919; Moody v ... Refining Co., 142 Tenn. 280, 218 S.W. 817; Norris v ... Ross, 98 Kan. 394, 161 P. 582; Cole v. Sav. & L. Soc., ... supra, Seale v. Ry. Co., supra; Chatanooga L. & P. Co. v ... Hodges, supra; ... ...
  • Illinois Cent. R. Co. v. Bloodworth
    • United States
    • Mississippi Supreme Court
    • January 9, 1933
    ... ... N.W. 1031, 12 L.R.A. 482; Willis v. Armstrong ... County, 183 Pa. 184, 38 A. 621; Nichols v ... Pittsfield, 209 Pa. 240, 58 A. 283; Norris v ... Ross, 98 Kan. 394, 161 P. 592; Atchison, Topeka & S ... F. Ry. Co. v. Calhoun, 213 U.S. 1; Milwaukee, etc., ... R. Co. v. Kellogg, 94 ... ...
  • Thummel v. Kansas State Highway Commission
    • United States
    • Kansas Supreme Court
    • December 8, 1945
    ...of a third party and not to any negligent omission on the part of the railway. The defendant also relies on the case of Norris v. Ross Township, 98 Kan. 394, 161 P. 582. such case the township did not have five days' notice of the defect which caused the accident, and the decision turns on ......
  • Arnold v. The Board of County Commissioners of The County of Coffey
    • United States
    • Kansas Supreme Court
    • October 11, 1930
    ... ... HIGHWAYS -- Injury from Defect -- Elements of Proof. In an ... action for damages under R. S. 68-301 against a county or ... township, the elements necessary to be established are ... discussed ... 2 ... SAME--Injury from Defect--Notice by Chairman of County Board ... Even though such a ... defect exists, if it were not the proximate cause of the ... injury, there is no liability. (Norris v. Ross ... Township, 98 Kan. 394, 161 P. 582.) This appears to be ... the ordinary rule of cause, or legal cause, essential to be ... established ... ...
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