Parr v. The Board of County Commissioners of Shawnee County

• Decision Date: 05 November 1904
• Docket Number: 13,639
• Citation: 78 P. 449,70 Kan. 111
• Parties: SAMUEL PARR v. THE BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY
• Court: Kansas Supreme Court

78 P. 449

70 Kan. 111

SAMUEL PARR v. THE BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY

No. 13,639

Supreme Court of Kansas

November 5, 1904

Decided July, 1904.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS -- Defective Bridge -- Statutory Liability of County -- Must be Actual Personal Notice of Particular Defect. Under the statute imposing a liability upon the county for damage sustained by reason of a defective bridge constructed by the county, where the chairman of the board of county commissioners has five days' notice of the defect the notice essential to a recovery is actual personal notice of the defect causing the injury, and signifies something more than an opportunity to acquire notice by the exercise of due care and diligence.

2. HIGHWAYS -- Notice Will Not be Inferred. There must be actual notice of the particular defect causing the injury, and something more than an inference of notice from the long continuance of a defect.

3. HIGHWAYS -- General Knowledge Insufficient. A general knowledge of the plan and original construction of a bridge faulty in some respects, which has stood and been used for about nine years, cannot be regarded as notice of a particular defect, viz., a decayed sill, which broke, and which may have been affected to some extent by the imperfect construction.

4. HIGHWAYS -- Required Notice Not Proved. Upon an examination of the evidence, it is held, that the requisite notice of the defect causing the injury was not shown.

D. H. Branaman, and David Overmyer, for plaintiff in error.

Otis E. Hungate, and Welch & Welch, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

In June, 1901, while Samuel Parr was passing over the Shunganunga bridge, it fell, precipitating him into the creek below and severely injuring him. The bridge was built by the county commissioners of Shawnee county in 1892, nine years before the fall, and was repaired by the county in December, 1899. It was a combination bridge of wood and iron, sixty-five feet long, and had a roadway sixteen feet wide. At one end of the bridge was a stone abutment, on which there was an oak sill or cap, eighteen feet long and about ten inches square, and at the other end was piling, upon which there was another oak cap of the same length and size. The dimensions of the abutments were not clearly shown, but the length was given as from sixteen and a half to seventeen and a half feet. There was evidence that each end of the wooden sills extended over the ends of the abutments about four inches. The sill on the stone abutment broke, and the bridge fell. The broken sill was described by witnesses as "brash," "partially rotted," affected with "a dry rot," and that it was the "same color clear through."

Parr presented a claim for damages to the board of county commissioners, which was disallowed. An appeal was taken to the district court, where a trial was had with a jury, and at the close of plaintiff's evidence a demurrer to the evidence was sustained, and under the direction of the court a verdict was returned in favor of the county.

The statute makes a county liable for damages sustained by reason of a defective bridge constructed by the county, where the chairman of the board of county commissioners had notice of such defects at least five days prior to the time the damage was sustained. (Gen. Stat. 1901, § 579.)

The bridge that fell was built by the county. It was defective, and by reason of the defect it fell. Was there such notice of the defect as to make the county liable? This question has been practically determined by former rulings of this court. No proof was offered to show that the chairman of the board had personal knowledge that the sill was rotten, nor that any one had told him that there was danger that the bridge would fall because of any particular defect. Much is said in the argument about implied notice, and notice derived from facts and circumstances which pointed to the ultimate fact. Whatever may be the rule as to notice of transfers and conveyances of property and the like, that required in statutes like the one before us is necessarily of a high degree. The liability insisted on is statutory. In the absence of a statute no recovery could be had against the county for injuries resulting from a defective bridge, however negligent the officers might be. Under this statute, imposing a new liability on the county, the notice essential to a recovery is actual personal notice, afforded by direct knowledge of a particular fact, or by direct communication from those acquainted with it, as distinguished from constructive or implied notice, arising from a knowledge of facts and circumstances sufficient to put one on inquiry and lead to knowledge of the fact in question. So it was said in Murray v. Woodson County, 58 Kan. 1, 48 P. 554:

"In actions under the statute (ch. 237, Laws 1887; Gen. Stat. 1889, § 7134) to recover for injuries occasioned by a defective bridge, notice of the defect must be brought home to the chairman of the county board; and a presumption, that information of the defect possessed by another member of such board was communicated by him to the chairman, will not be indulged. . . . The statute charges the county with liability only where the chairman of the board has notice of the defect in question. This statute excludes the idea of imputable or constructive notice."

It was in effect held, in McFarland v. Emporia Township, 59 Kan. 568, 53 P. 864, that the statute required actual notice, not only of the physical conditions, but of the fact that such conditions resulted in making the highway unsafe. In Jones v. Walnut Township, 59 Kan. 774, 52 P. 865, a township trustee had been notified that a bridge had been defective, and he caused it to be repaired. Seven months afterward an injury occurred because of a rotten stringer in the bridge, which was not noticed by him when the repairs were made. In answer to the question whether a liability could arise under the circumstances it was remarked:

"We think not. The trustee discharged his duty when he directed the repair of the bridge, after notice had been given him of its defective condition. The particular defect causing the accident, if in existence at that time, was not specially called to his attention, and was not observed by the road overseer in making the repairs, and such evidences of the condition of the stringer as were observed by the road overseer negatived the idea of its being defective."

The sufficiency of a notice under this statute was considered in Hari v. Ohio Township, 62 Kan. 315, 62 P. 1010, and the question was whether notice may be presumed from the open character and the continued existence of a defect. The court said:

"In our judgment, such last-mentioned kind of notice is insufficient. The statute requires 'at least five days' notice,'...