The City of Kansas City v. Orr

• Decision Date: 09 June 1900
• Docket Number: 11,626
• Citation: 62 Kan. 61,61 P. 397
• Parties: THE CITY OF KANSAS CITY v. ANNIE ORR, as Administratrix, etc
• Court: Kansas Supreme Court

61 P. 397

62 Kan. 61

THE CITY OF KANSAS CITY v. ANNIE ORR, as Administratrix, etc

No. 11,626

Supreme Court of Kansas

June 9, 1900

Decided July, 1900.

Error from Wyandotte court of common pleas; W. G. HOLT, judge.

Judgment affirmed.

T. A Pollock, and F. D. Hutchings, for plaintiff in error.

Angevine & Cubbison, for defendant in error.

OPINION

JOHNSTON, J.:

This was an action by Annie Orr, administratrix of the estate of J. W. Orr, deceased, to recover damages for the death of her husband, J. W. Orr, alleged to have resulted from the negligence of the city.J. W. Orr, a switchman in the employ of the Chicago Great Western Railway Company, was killed on November 7, 1897, at the intersection of Central avenue and Wood street, in Kansas City.Central avenue, which runs east and west, is a paved and much-traveled street, and Wood street, which runs north and south, is occupied at this point by two tracks of the Kansas City &amp Northwestern Railroad Company, which are also used by the Chicago Great Western Railway Company, the employer of Orr.The intersection of the streets is planked between the tracks and also between the rails of the tracks with planks which are about four inches thick.One of the planks inside of the rail was placed from three and one-half to four and one-half inches from the rail, leaving an opening about four inches deep.Space is required for the flanges of the car-wheels but the opening left is alleged to have been unnecessarily wide, and further, that the street had been left in that dangerous condition for more than thirty days prior to the accident.In the early morning of the day mentioned, a train of cars was slowly backed along Wood street and over Central avenue.Orr was walking beside the train, and at the intersection it became necessary for him to uncouple the cars, and it is alleged that for that purpose he went between the cars, stepped into the hole negligently left by the city, and his foot wedged therein so that he was thrown down and crushed by the wheels of the cars and killed.

The defense of the city was that it was not required to keep the streets in a reasonably safe condition for the use of switchmen and other railway employees passing along or over the streets; and further, that it was not liable for injuries suffered by such persons while engaged in such occupations upon the streets.The answer also included an averment that the injury was the result of contributory negligence.Special findings of fact were made by the jury, which were to the effect that while the train was backing over Central avenue, at the rate of three miles per hour, Orr went between the cars to uncouple them, stepped in the hole mentioned, which held his foot so that he could not withdraw it, and he was therefore thrown down and run over by the cars.There was a further finding that the space left for the flange of the wheels at the point of the accident was wider than is usually left for that purpose, and that it had remained in the same condition for more than thirty days prior to the accident.The general verdict was against the city, and the damages were assessed at the sum of $ 5000.

The main contention of the city is that the only duty which it owes to the public with respect to streets is to keep them in a reasonably safe condition for the ordinary purposes of travel; that Orr was not making such use of the streets when he was injured; that he was not a traveler in the legal sense, and therefore no liability could arise against it for injuries sustained by him on account of defective streets.Cases of our own and other courts are cited in which it is said, in substance, that it is the duty of the city to keep its streets in a reasonably safe and suitable condition for travel in the usual modes, or for the travel that usually passes over them (Jansen v. Atchison, 16 Kan. 358;City of Wellington v. Gregson, 31 id. 99, 1 P. 253;City of Emporia v. Schmidling, 33 id. 485, 6 P. 893), and it is argued from these that Orr was not using the street for ordinary travel.The cases referred to do not undertake to define the term "traveler," nor do they decide what are the usual modes of travel or the legitimate uses to which the streets may be put.In most of the cases the purpose of the court was to show that the law does not require the streets to be so maintained as to secure absolute immunity from danger in using them, and that the limit of the duty of the city was to keep them in such a condition that persons entitled to the use of the streets could pass over or along them with reasonable safety and convenience.

The fact that Orr was a railway employee and engaged in the performance of his duties upon the street when he was injured did not, we think, exclude him from the protection of the law or relieve the city from liability for injuries to him resulting from its negligence.The corporate duty of the city is to keep the streets reasonably safe and convenient for all those who rightfully use them and who have occasion to pass over them for purposes of business, convenience, or pleasure.The railway was placed in the street with the consent and by the authority of the city; it was one of the ordinary uses to which that street was put, and the employees of the company while engaged in the performance of their duties, were required to pass along and over the street.While so engaged, they were not travelers, in a technical sense, but they were making an appropriate and legitimate use of the street, and one which was within the contemplation of the city when the right to such use was granted.In determining the duty and liability of the city, the terms "travel" and "traveler" are not to be given a narrow and restricted meaning, but should be held to embrace such legitimate uses as may be made by persons having occasion to pass over them while engaged in any of the duties of life, and persons using the street as Orr was when the injury was sustained.Orr was rightfully in the street; his duties required him to pass along and over it, and he was as much entitled to a safe and convenient place to walk there as the conductor of a street-car, the driver of a dray, or other person engaged in his ordinary business.A city is not required to prepare and maintain its streets for unusual and extraordinary uses, such as the moving of heavy buildings or the traveling over the streets with stilts, but the use made of the street by Orr was neither unusual nor extraordinary.It was just such use as was made of the street frequently every day, and which the city must...