Potter v. The Rorabaugh-Wiley Dry Goods Company
| Decision Date | 07 January 1911 |
| Docket Number | 16,775 |
| Citation | 83 Kan. 712,112 P. 613 |
| Parties | M. W. POTTER, Appellant, v. THE RORABAUGH-WILEY DRY GOODS COMPANY, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1911.
Appeal from Reno district court.
Judgment reversed.
SYLLABUS BY THE COURT.
EVIDENCE--Burden of Proof--Negligence--Injury to Pedestrian. It is the duty of one who projects or maintains an awning over a street to keep it from becoming dangerous to pedestrians lawfully upon the street; and where it appears that an awning, or a part of it, fell and injured the plaintiff while she was passing along the street, the burden is cast upon the defendant, to whose building the awning was attached, to prove that all proper and reasonable care had been employed in the construction and maintenance of the awning.
R. P B. Wilson, W. H. Lewis, Carr W. Taylor, and George A. Neeley, for the appellant.
Smith & Malloy, for the appellee.
M. W. Potter brought this action against the Rorabaugh-Wiley Dry Goods Company to recover damages for injuries alleged to have been sustained through the falling of an awning which was attached to appellee's store building, and which struck appellant on the head while she was passing along the street. In was averred that the awning was negligently constructed and insecurely fastened, and also that it was maintained in violation of an ordinance of the city. The trial resulted in favor of the defendant, and the plaintiff complains of the rulings in the admission of testimony and in instructing the jury.
The evidence is conflicting as to the exact cause of the accident and the extent of the injury. By some of the testimony it appears that a rod of the awning fell and hit appellant on the head. She said it was a hard blow, which at the time dazed her and affected her vision. A witness said he saw the occurrence and it appeared to him that a rod loosened from the awning and fell on her head, tipping her hat, and he remarked to her: "Pretty hard lick, wasn't it?" Another witness said he was near and saw a part of the awning strike appellant on the head; that she staggered a little, and then passed on in company with her friend. The woman who was walking with appellant testified that she could not tell whether the rod fell on appellant or whether she ran against it, but that the collision did not stagger her or arrest her progress, or even make a break in her conversation. One witness said that there was no exclamation of pain, but that appellant adjusted her hat and passed on, laughing and conversing with the woman who was walking with her.
Counsel for appellant asked the court to instruct the jury that "the law casts upon the owners of buildings abutting on the street, who attach thereto structures overhanging the street, the duty of preventing such overhanging structures from becoming, in any way, dangerous to persons lawfully passing on the highway, and where the plaintiff shows that while lawfully in the highway, or on the sidewalk, she is injured by some part of such structure falling upon her, the burden rests upon the defendant to show that it was blameless in the premises." The instruction was refused, and the court placed the burden of proof wholly upon appellant. The testimony, although conflicting and unsatisfactory, did tend to prove that a part of the awning projecting over the street fell upon and injured appellant. She was entitled to an instruction stating the rule of law applicable to the evidence which her testimony tended to prove. Those who place or project objects over a street upon which persons are passing and repassing take upon themselves the duty of making such objects secure, and if the object falls and injures a pedestrian the maxim of res ipsa loquitur applies and the burden rests upon the defendant to show that the fall and injury did not occur through his negligence. The rule was applied in Scott v. London Dock Co., 3 H. & C. (Eng.) 594, where in lowering sugar from a warehouse to the pavement below the dock company dropped a...
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Brown v. Sioux Bldg. Corp., 49135
...would then apply. As to similar cases pertaining to falling awnings, see Annotation, 34 A.L.R.2d 486; Potter v. Rorabaugh-Wiley Dry Goods Co., 83 Kan. 712, 112 P. 613, 32 L.R.A.,N.S., 45; McCrorey v. Thomas, 109 Va. 373, 63 S.E. 1011, 17 Ann.Cas. 373; Schnur v. State, Ct.Cl., 35 N.Y.S.2d 49......
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...evidence of its defective and dangerous character. Turner v. Haar, 144 Mo. 335; Schraff v. Construction Co., 115 Mo.App. 157; Potter v. Borabaugh, 83 Kan. 712. (7) The testimony of Mildred Greene as to the condition of the billboard adjacent to the part that fell and injured the appellant, ......
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