Reading Tp. of Lyon County v. Telfer

• Decision Date: 06 March 1897
• Citation: 57 Kan. 798,48 P. 134
• Parties: Reading Tp. of Lyon County v. TELFER.
• Court: Kansas Supreme Court

48 P. 134

57 Kan. 798

Reading Tp. of Lyon County v. TELFER.

Supreme Court of Kansas

March 6, 1897

Syllabus

1. The negligence of a husband in driving with his wife in a vehicle over a defective highway, whereby injury occurs to the wife cannot be imputed to her in bar of an action for damages against the township permitting such defects, where it is not shown that the husband was under the direction and control of the wife at the time.

2. The statute (section 1, c. 237, Laws 1887; paragraph 7134, Gen St. 1889), giving a right of action against counties and townships in favor of persons who, without contributing negligence, sustain damages by reason of defective bridges or highways, changes neither the burden of pleading or proof, so as to require a plaintiff suing for damages for injuries caused by such defects to allege or prove nonnegligence on his part.

3. In order to constitute a public road a "defective highway" within the meaning of the statute above cited, it is not necessary that it shall first be improved, and put in condition for travel, and then allowed to become defective through lack of repair.

4. The evidence in this case does not show the damages allowed ($5,165) to be excessive.

Error from district court, Lyon county; W. A. Randolph, Judge.

Action by Elizabeth A. Telfer against Reading township. From a judgment for plaintiff, defendant brings error. Affirmed.

Chas. B. Graves, H. D. Dickson, and I. E. Lambert, for plaintiff in error.

E. W. Cunningham and W.T. McCarty, for defendant in error.

OPINION

DOSTER, C. J.

Mrs. Elizabeth A. Telfer and her husband lived in Reading township, Lyon county. July 19, 1892, they started to visit Mrs. Telfer’s mother, some miles distant, in a spring wagon. Mr. Telfer acted as driver. The highway at a certain point crossed a ravine with steep and rocky banks, which rendered it a difficult and dangerous place. In endeavoring to cross, the wagon was "tipped over" on account of the roughness and difficulty of the descent of one of the banks, and Mrs. Telfer was severely injured thereby. The defect in the highway causing the accident was known throughout the neighborhood, and, being on an open prairie, most of the travel had avoided it by going around some distance on either side; but a few weeks previous to the accident the owners of the adjacent lands had fenced the same up, compelling travelers to pursue the line of the highway, and thus cross the place in question, and a short time before the accident the husband and wife had crossed the place where it occurred. The township trustee had actual knowledge of the defect in the highway at that point, and contemplated putting it presently in better condition. The plaintiff, Mrs. Telfer, brought suit against the township in which the accident occurred to recover for her injuries, under the statute (section 1, c. 237, Sess. Laws 1887; paragraph 7134, Gen. St. 1889), which reads as follows: "Any person who shall without contributing negligence on his part sustain damages by reason of any defective bridge, culvert, or highway, may recover such damages from the county or township wherein such defective bridge, culvert, or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defect for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township where the trustee of such township shall have had like notice of such defect." A verdict was returned and judgment rendered in her favor, from which the township prosecutes this proceeding in error.

It was contended in the court below that the evidence showed the husband to have been guilty of contributory negligence in driving over a highway known by him to be defective and dangerous, and that such negligence was imputable to the wife, and, being so, barred a recovery by her; and a request for instructions to the jury predicated upon this view of the law was preferred, and refused by the court. The first claim of error arises upon this refusal. This claim is rested upon an assumed or implied agency of the husband in driving the vehicle under the direction and command of the wife, or as a participant with her in a joint venture or enterprise. Before proceeding to the consideration of this claim of error, it may be well to state that no charge of negligence is made against the wife herself, either in the briefs or oral argument of counsel, other than the legal imputation to her of the husband’s negligence under the facts proved. The question of her personal negligence in contributing to the injury was submitted to the jury under instructions of which no complaint is made, and was found in her favor. It is claimed that the visit to the mother was undertaken by the husband at the solicitation of his wife; that it was her visit, and not his; and that, if such does not appear as a fact from the evidence, the least that can be said is that it was a joint venture by both husband and wife; and from each of these alternative propositions of fact a deduction of agency in the husband for the wife is drawn, and from thence the legal imputation of negligence is derived. The question is, therefore, squarely presented whether the contributory negligence of the husband in driving his wife over a defective highway can be imputed to her in bar of an action against the person principally or primarily responsible for the injury. Our judgment is that it cannot; but the authorities, it may as well be admitted, are conflicting irreconcilably so, and are numerous in support of each side of the contention. That the principal cannot recover for injuries to which the negligence of his agent and a third person have contributed, is settled beyond dispute, both upon reason and authority. The difficult question is, under what circumstances can an agency be implied or said to exist? ...