The City of Kansas City v. McDonald

• Decision Date: 06 May 1899
• Docket Number: 11126
• Citation: 57 P. 123,60 Kan. 481
• Parties: THE CITY OF KANSAS CITY v. NELLIE MCDONALD
• Court: Kansas Supreme Court

57 P. 123

60 Kan. 481

THE CITY OF KANSAS CITY v. NELLIE MCDONALD

No. 11126

Supreme Court of Kansas

May 6, 1899

Decided January, 1899.

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

Judgment affirmed.

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

Angevine & Cubbison, for defendant in error.

OPINION

SMITH, J.:

Nellie McDonald recovered a judgment in the court of common pleas of Wyandotte county against the defendant below for $ 7500 by reason of the wrongful acts, neglect and default of the city in causing the death of her husband. Andrew J. McDonald was a member of the fire department of Kansas City, Kan., and the driver of a hook-and-ladder wagon. On the night of August 10, 1896, in responding to an alarm of fire in the south part of the city, the truck upon which he was riding, while being driven at a high rate of speed, ran against and upon an obstruction in the roadway, consisting of a pile of rocks from 18 to 24 inches high and 40 feet long, extending into the street about 12 feet from the west curb. The violence of the collision threw McDonald forward upon the rocks and he was instantly killed. William Clarke, captain of the truck, was riding with McDonald at the time of the accident. The obstruction mentioned was in front of some houses then building and the rock was for use in their erection. There was at the time an ordinance of the city in force providing that persons engaged in the construction of any building might occupy so much of the street in front thereof as was necessary for the purpose of depositing material for use in its construction, not over one-third of the width of the street so to be occupied. It was alleged in the petition that by the passage of said ordinance the city wrongfully and negligently authorized persons to obstruct the street, including South Seventh street at the place where the accident occurred, with earth, sand, gravel, stones, etc., without requiring them to place thereon guards, lights, or other danger-signals to warn persons passing of the existence of such obstructions. The defendant city, among other things, pleaded in defense the following ordinance:

"Any person who shall intentionally ride or drive any horse, mule or other beast faster than an ordinary traveling gait in any of the streets, avenues or alleys within the city, or so drive as to endanger the safety of others, or who shall so ride or drive as to be likely to cause other teams to be frightened or run away, shall upon conviction thereof be fined in any sum not exceeding $ 100."

The court below sustained a demurrer to that paragraph of the answer which pleaded the ordinance as a defense, and this is the first assignment of error. It is contended that the ordinance was proper evidence to show that McDonald, by its violation, was guilty of contributory negligence. We do not think that the ordinance was intended to govern the actions of firemen or regulate the speed of fire-engines or trucks. Such an intention is nowhere expressed, and if it had been the ordinance would have been unreasonable. Cities do not provide horses of high mettle, trained to propel speedily apparatus for the extinguishment of fires, and then impede them in their progress by a requirement that they shall not be driven faster than an ordinary traveling gait. Various appliances have been devised by which such horses are harnessed with incredible speed that no time may be lost in reaching the fire with hose and other aids to prevent the destruction of property. It is of first importance that a fire be reached in its incipiency, and, to accomplish this purpose, the utmost haste is necessary. A compliance with this ordinance by the firemen and the enforced delay required by its terms would convert the fire department into a purely ornamental adjunct to the city government, proficient only on parade. In Farley v. The Mayor, etc., 152 N.Y. 222, 46 N.E. 506, it is said:

"The safety of property and the protection of life may, and often do, depend upon celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of the fire department in going to fires. Section 1932 was intended to regulate the speed of horses traveling on the streets and using them for the ordinary purposes of travel, and from the nature of the exigency cannot apply to the speed of vehicles of the fire department on their way to fires."

The restriction as to speed, when applied to the fire department, renders the ordinance unreasonable, and unreasonable ordinances will not be upheld by the courts. (1 Dillon, Mun. Corp., § 319; Crawford v. City of Topeka, 51 Kan. 756, 33 P. 476; Anderson v. City of Wellington, 40 id. 173, 19 P. 719; State v. Sheppard, 64 Minn. 287, 67 N.W. 62.)

A general demurrer was also sustained to the fourth paragraph of the answer of the city, which reads:

"The defendant further says, that under and by virtue of the provisions of chapter 363 of the Laws of 1895, and out of the funds created and provided for by said law, it purchased, on the 7th day of August, 1896, an accident insurance policy for said Andrew McDonald, in plaintiff's petition named, from the Travelers' Insurance Company, by which contract and policy said company agreed to pay, and did pay, to the plaintiff, on account of the death of said Andrew McDonald, by reason of the causes in plaintiff's petition set forth, the sum of $ 2000, which sum the plaintiff did receive and still retains."

There is nothing in the act of 1895 (Gen. Stat. 1897, ch. 74, §§ 38-44) implying that indemnity is furnished to the city against damages to the widow or next-of-kin of a fireman killed by its negligence. The accident policy cost the city nothing. The premiums were paid by foreign insurance corporations doing business in the state, a tax being laid by the state of two dollars a hundred upon the amount of all premiums on policies written for fire and lightning insurance within the limits of such city for each year. The law authorized the amount of the tax to be invested in the purchase of accident insurance upon the members of the fire department. The tax is collected by the state for the purposes mentioned, and the mayor and council in cities having a paid fire department are constituted its agents, charged with the duty of applying the amount of the tax to further the objects named. The demurrer to said paragraph of the answer was properly sustained. (Coots v. City of Detroit, 75 Mich. 628, 43 N.W. 17.)

Evidence was introduced by the plaintiff below showing that at the time of the accident there was a pile of sand, cinders and earth on the east side of the street south of but near the place where the first obstruction mentioned was situated. Counsel for the city complain that the admission of this testimony tended to convey to the jury an impression that the city was unmindful of the streets and permitted any and all persons to obstruct them. It was competent to show the width of the roadway in condition for travel at and near the place of the accident, as it might properly be shown that one side of the street was higher or lower than the other, and the condition in general of the surroundings. There was proof tending to show that the rocks upon which the wagon struck were of light color, similar to that of the block pavement in the street, and hence not distinguishable from...