Smith v. Kansas City

• Decision Date: 04 March 1944
• Docket Number: 35996.
• Citation: 158 Kan. 213,146 P.2d 660
• Parties: SMITH v. KANSAS CITY.
• Court: Kansas Supreme Court

146 P.2d 660

158 Kan. 213

SMITH v. KANSAS CITY.

No. 35996.

Supreme Court of Kansas

March 4, 1944

Syllabus by the Court.

In testing sufficiency of plaintiff's evidence as against demurrer, court must consider all such evidence as true consider that favorable to plaintiff, with all reasonable inferences therefrom, disregard evidence unfavorable to plaintiff, and weigh no contradictory part thereof nor any differences between plaintiff's direct and cross examination, and if, so considered, there is any evidence sustaining plaintiff's case, the demurrer should be overruled.

The construction and maintenance of sewer by city is "governmental", as distinguished from "ministerial" or "proprietary", function.

A municipality is not liable for personal injuries sustained as result of its negligence in performance of governmental function, except for injuries arising from defects in streets or highways.

A city rests under positive legal duty to keep its streets sidewalks, and crosswalks in condition reasonably safe for their intended use.

A city was liable for injuries to pedestrian as result of defective condition of lid on manhole of catch basin, constructed by city in street to drain off surplus water and dispose of debris thereon, though basin was connected with city sewer system, constructed and maintained in governmental capacity and was not in center of street.

A city must have actual or constructive notice of defective condition of street to render it liable for personal injuries caused thereby.

Generally no proof of notice to city of defect in street caused by city or those for whose acts it is responsible is required in order to recover from city for personal injuries caused thereby, as such notice is implied.

In action against city for injuries to pedestrian as result of stepping on loose manhole lid in street, evidence of defective condition of lid for as long as two years before date of accident, many persons' knowledge of such condition, and absence of solid lid on manhole for 18 years, was sufficient to take to jury question whether city had notice of condition.

An injured plaintiff's contributory negligence is question of fact for jury when it is reasonably open to debate or one on which reasonable minds may differ under evidence.

A pedestrian, injured as result of stepping on loose manhole cover level with surface of concrete slab over catch basin constructed and maintained by city in street, was not guilty of contributory negligence as matter of law, in view of her undisputed testimony that she looked before stepping on cover and that it showed no sign of being loose.

On appeal from order overruling defendant's demurrer to plaintiff's evidence and judgment on jury's verdict for plaintiff, Supreme Court is limited to consideration of question whether there was any evidence to establish cause of action in plaintiff's favor against defendant.

In action against city for injuries to pedestrian stepping on loose manhole cover in street, jury's verdict for plaintiff was not improper as indicating disregard of court's instructions as to manner in which jury should determine whether city used proper degree of care in maintaining catch basin underneath such portion of street and circumstances under which municipality is required to inspect its streets and places in close proximity thereto for protection of traveling public.

A jury's verdict, awarding aged woman, earning $10 per week as dressmaker, $3,000 damages for injuries to spine, dislocated knee, and bruised leg, incapacitating her to operate sewing machine, confining her to bed for three weeks, necessitating use of crutches for a month or so, and resulting in shattered nerves, continuous pains, and broken sleep, was not excessive.

On appeal, Supreme Court will not speculate as to what might have been result had appellant seen fit to pursue different course of procedure during trial than that actually pursued, nor permit appellant to urge subsequently developed errors or mistakes in such procedure as circumstance extenuating force and effect of jury's verdict approved by trial court after considering appellant's motion for new trial.

1. In an action by a pedestrian to recover damages sustained when she stepped upon a defective lid of a manhole in a catch basin constructed and maintained by the city as a part of and incident to the maintenance of a city street, the record is examined on a demurrer to the plaintiff's evidence and held: (1) In the operation and maintenance of a catch basin under the circumstances disclosed in the opinion the city is not engaged in the performance of such a governmental function as will relieve it from liability for negligence, (2) since there was evidence tending to show the defect in the manhole lid existed from the date of the construction of such catch basin by the city no proof of notice of the defect is required, such notice being implied, (3) where the question of plaintiff's contributory negligence is reasonably open to debate or one on which reasonable minds might differ, determination of that question is one of fact and not of law, and (4) the demurrer to the evidence was properly overruled.

2. The record further examined and held, (1) a complaint that instructions of the trial court were disregarded by the jury is without merit, and (2) under the evidence disclosed by the record and the conditions related in the opinion the judgment for $3,000 cannot be held to be excessive.

Appeal from District Court, Wyandotte County, Division No. 2; Willard M. Benton, Judge.

Action by Luella Smith against the City of Kansas City for injuries sustained as the result of a manhole lid tilting when plaintiff stepped thereon. From an order overruling defendant's demurrer to plaintiff's evidence and a judgment on a jury's verdict for plaintiff, defendant appeals.in such procedure as circumstance extenuating force and effect of jury's verdict approved by trial court after considering appellant's motion for new trial.

William H. Towers, of Kansas City, (Alton H. Skinner, James H. Barnes, and Joseph A. Lynch, all of Kansas City, on the brief), for appellant.

A. J. Herrod, of Kansas City, for appellee.

PARKER Justice.

In this action plaintiff seeks to recover damages against the city of Kansas City, Kansas, for personal injuries alleged to have been sustained by her when she stepped upon the lid of a manhole in a catch basin constructed and maintained by the city. The defendant's demurrer to plaintiff's evidence was overruled and it elected to stand on such demurrer without offering any evidence in support of defenses set forth in its answer. The appeal is from the order overruling the demurrer to the evidence and from the judgment rendered by the trial court upon the verdict returned by the jury in favor of plaintiff.

Since a proper determination of the issues depends upon the sufficiency of the evidence to establish liability of the defendant city, it will be necessary to state the controlling facts at some length.

Many years ago the street railway company obtained a franchise from the city of Kansas City, Kansas, and proceeded to lay tracks on its private right of way in an easterly and westerly direction, over which it operated its streetcars. The franchise provided that if at any time the city desired any part of the right of way for use as a street or streets, the company would waive all claims for damages by reason of the taking thereof, and when so taken or otherwise acquired the general provisions of the franchise as to paving and all other matters as to the improvement of streets would apply. Some time later the city took over and occupied a 12 foot strip of the right of way on each side of the streetcar track, also an additional portion thereof lying adjacent to and directly south of the south 12 foot strip so appropriated on which to construct and maintain the catch basin herein referred to. The record is not entirely clear on the point, but it appears after such action the city used the 12 foot strip on each side of the railroad track as a street and that at the time of the accident here in controversy, and for a long time prior thereto, such street was known as Stewart Avenue and also Chelsea Park Trafficway. The record is silent as to the condition of the street and the manner in which the city maintained it until about ten years prior to the date of the institution of the instant action. At that time the city paved the street on each side of the streetcar track and in addition constructed the catch basin at the southwest corner of the intersection of Stewart Avenue and an alley running north and south between 12th and 13th streets, which streets also run in the same direction and intersect Stewart Avenue which runs in an easterly and westerly direction, and continued to maintain such street and catch basin from that time up to and including the date of the accident. The space between the streetcar tracks in the center of Stewart Avenue is not paved nor is there any sidewalk on either the south or north sides of such street for use by pedestrians.

The catch basin as constructed and maintained by the city although not accurately described, either in the pleadings or in the evidence, can be depicted from photographs which were a part of the record, as a solid concrete surface, place or slab, approximately 4 to 6 feet in length and 2 to 3 feet in width, located adjacent to the south curbing of the street and flush with such curbing both perpendicularly and horizontally, in the center or middle of which surface was located a round manhole covered by what is commonly known...