Swope v. City of Wichita
| Decision Date | 09 March 1935 |
| Docket Number | 32050. |
| Citation | 141 Kan. 388,41 P.2d 987 |
| Parties | SWOPE v. CITY OF WICHITA. [*] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
City is not ordinarily liable to person, injured when struck by falling branch of tree standing in parking, for neglect to remove tree after notice and examination thereof, unless some defect, in tree, was discovered or reasonably discoverable or reason found why tree should be removed for public safety.
A city is not ordinarily liable for neglect to remove a tree from a parking after notice and examination thereof, unless there is some defect discovered or reasonably discoverable therein, or reason found why it should be removed for public safety.
Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.
Action by Chester Swope against the City of Wichita. Judgment for plaintiff, and defendant appeals.
Reversed and remanded, with directions.
Vincent F. Hiebsch and K. W. Pringle, both of Wichita, for appellant.
Burt Comer and Dean L. Lachenmyer, both of Wichita, for appellee.
This is an action to recover from the city of Wichita damages suffered by the plaintiff when struck on the shoulder by a branch of a tree standing in the parking in front of his home where he had lived two years, when during a windstorm the tree was blown down and fell as he was getting out of an automobile in front of his home.
The petition alleged that the tree in question had for several months prior to the injury been dead, rotted, and decayed and the roots thereof were weak and of insufficient strength to support it in an upright position and withstand the pressure of the ordinary winds which prevailed in that locality; that this dangerous and unsafe condition was known by the defendant, its officers, agents, servants, and employees, or ought to have been known and could have been known by the exercise of reasonable or ordinary care, but that the city negligently permitted the tree to remain; that defendant had been notified of its unsafe and dangerous condition; and that in a few days after being notified of its condition the officers of the city inspected and examined the tree and condemned the same as being insecure, unsafe dangerous, and a hazard to the safety of the public.
The answer of the defendant city consisted of general and special denials; that the city was not liable generally; that the windstorm was unusually violent and severe; and that plaintiff was guilty of contributory negligence. The reply was a general and special denial.
The jury rendered a verdict for the plaintiff and answered several special questions. The defendant moved to strike out the answers to two of the questions, which motion was overruled. Defendant then moved for judgment on the answers to the special questions notwithstanding the general verdict which motion was overruled as well as a motion for a new trial. Defendant appeals assigning several errors, among them the failure and refusal of the trial court to render judgment for the defendant on the answers to the special questions.
It is not seriously contended in this case that the maintenance of trees in the streets is a governmental function for which there can be no liability for negligence in connection with the care and attention necessary to keep them in a fair and reasonable condition for the safety of the public. But the city is not an insurer of the safety of its streets from falling trees or branches and only liable where it has been negligent in some respect. This was apparently uppermost in the minds of the court and counsel in the trial of this case, for all the special questions asked of the jury were on questions of negligence and contributory negligence, and they have most to do with the result of the action. A recent decision in the same kind of a case, and from the same locality, is particularly pertinent here as defining the liability, duties, and obligations of a city with reference to the care of trees on the street. The first syllabus of this case, Turner v. City of Wichita, 139 Kan. 775, 33 P.2d 335, is as follows: "A city is liable in damages to a person injured by a falling branch or limb of a tree, only when the city has notice of the defective condition of the tree, and the branch or limb falls on account of its decayed or rotted condition or is thrown down as the result of usual and ordinary winds; but in case a high and more or less unusual wind is blowing, and it need not be a tornado nor even of unprecedented velocity, and it is obvious to a person of ordinary intelligence traveling upon the street that limbs and branches either decayed, rotted, or living from trees standing in the highway may be thrown down, there is no liability, unless the condition of the tree or the limbs or branches thereof is so patently bad and has existed for such length of time that permitting them to remain is equivalent to an utter disregard of the safety of the traveler in the street."
Many of the earlier decisions in this and other courts are cited and discussed in the opinion, and negligence and contributory negligence are almost the sole determinating features of such cases.
Nine special questions were asked and answered in this case. The first two questions and answers have to do with the condition of the street as to it being unsafe. The next three are directly upon the question of negligence and contributory negligence, the third and fifth applying as much to the defendant as to the plaintiff. These five are as follows:
To continue reading
Request your trial
-
McGinn v. City of Omaha
...to find that the State in the exercise of reasonable care should have observed the weakness and removed it." In Swope v. City of Wichita, 141 Kan. 388, 41 P.2d 987 (1935), it was held that negligence could not be found by a jury when, in response to special questions, the jury could not sta......
-
Billings v. City of Wichita
... ... casual pedestrian who passes over the defect for perhaps the ... first time? Defendant in effect contends it is. In support of ... its contention it relies in part on the authorities of ... City of Emporia v. Schmidling, 33 Kan. 485, 6 P ... 893, and Swope v. City of Wichita, 141 Kan. 388, 41 ... P.2d 987. Neither case supports defendant's contention ... In the Emporia Case it was held: ... "Incorporated ... cities are required to construct and maintain their streets ... and sidewalks in a reasonably safe and suitable condition ... ...
-
Staudinger v. Sooner Pipe & Supply Corp.
...defendant was not guilty of negligence. In Behler v. Wichita Transportation Co., 136 Kan. 591, 16 P.2d 503, and in Swope v. City of Wichita, 141 Kan. 388, 41 P.2d 987, the rule has been applied where the special findings of the jury acquit the defendant of the negligence charged in the We c......
-
Webb v. City of Oswego
... ... Our ... attention is directed to various statutes dealing with trees ... and to our cases of Swope v. City of Wichita, 141 ... Kan. 388, 41 P.2d 987, and Turner v. City of ... Wichita, 139 Kan. 775, 33 P.2d 335, and especially to a ... portion ... ...