The Board of County Commissioners of The County of Cloud v. Vickers

• Decision Date: 09 June 1900
• Docket Number: 11,590
• Citation: 62 Kan. 25,61 P. 391
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLOUD v. E. J. VICKERS
• Court: Kansas Supreme Court

61 P. 391

62 Kan. 25

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLOUD v. E. J. VICKERS

No. 11,590

Supreme Court of Kansas

June 9, 1900

Decided July, 1900.

Error from Cloud district court; F. W. STURGES, judge.

Judgment affirmed.

L. J Crans, for plaintiff in error.

R. W Turner, and Pulsifier & Alexander, for defendant in error.

OPINION

SMITH, J.:

A. L. Vickers was killed by the falling of a stone-arch bridge which, at the time, was being erected by J. M. Hass, under a contract with Cloud county. The deceased was a common laborer. He assisted in the removal of certain wooden half-circles, over which an arch of the bridge had been built, when the latter collapsed, causing stone and earth to fall upon him. This action was prosecuted by E. J. Vickers, his widow, to recover from the county her pecuniary loss by reason of his death. She alleged that the members of the board of county commissioners entered into a contract with Hass, and adopted plans and specifications for a bridge which were defective and dangerous; that they were informed that a bridge built in accordance with such plan would not stand; and further, that the board of county commissioners retained to itself supervision of the work, and appointed one William McCall to superintend the same, and that the latter negligently omitted to notify Vickers of the dangers surrounding him. The contract between the county and J. M. Hass was attached as an exhibit to the petition; also the verdict of a coroner's jury, returned after an inquest over the body of the deceased, in which it was found that his death was caused by an accidental falling of the bridge under which he was working at the time.

The answer of defendant below alleged contributory negligence on the part of Vickers, in that he carelessly and recklessly dislodged and removed stones composing a part of the bridge upon which he was then working under the direction of said Hass. Verdict and judgment were rendered for the plaintiff.

The case has been in this court before. (Vickers v. Cloud County, 59 Kan. 86, 52 P. 73.) In the former decision it was held that the statute giving a right of action applies as well to those who are rightly under the bridge as to those who are traveling over it; and further, that the statute, being remedial in its nature, should be liberally construed.

Counsel for plaintiff in error contends that the court below, in passing on a demurrer filed by the county, considered as a part of the petition certain offers of proof made by the plaintiff when the case was first tried, in 1895, as appears from the case-made of that trial incorporated in the record before us. We do not understand, however, that this offer of proof was regarded as a part of the petition at the last trial. In the original suit the members of the board of county commissioners were joined as defendants with the county. The court sustained a demurrer interposed by defendants on the ground that the causes of action were improperly joined, but permitted the plaintiff to allow her original petition in the case to stand against the board of county commissioners. There is nothing in this record which definitely points out that the court, on the hearing of the demurrer, considered anything but the allegations of the petition on which the last action was tried.

It is contended that the demurrer should have been sustained, for the reason that, notwithstanding the specific allegations of negligence on the part of defendant below, the verdict of the coroner's jury attached to the petition as an exhibit showed, as a result of the inquest, that the jury found that the cause of the death was an "accidental falling of a stone-arch bridge." It would be a strained meaning to give the word "accidental" to say that its use in such a petition, coupled with the various averments of negligence charged against the county, narrowed down the alleged cause of the death by making it due to something unforeseen and fortuitous. The setting out of this coroner's verdict was wholly unnecessary and surplusage; yet, considering it as properly a part of the petition, we do not think the cause of the death stated therein controls the other allegations of the petition; nor can we say that the use of the word "accidental," so employed, is inconsistent with the accompanying averments that the deceased was killed through the. negligent acts of the defendant below.

There was abundant proof that both the chairman and members of the board of county commissioners had express notice at the time the plans and specifications for the bridge were adopted that the same were defective and dangerous. This information was given them by Mr. Hass, who built the bridge. He told them if constructed on the plan adopted, it would not stand; and several competent civil engineers, in confirmation of Mr. Hass's prediction, testified, after examining such...