The City of Rosedale v. Cosgrove
| Decision Date | 01 January 1901 |
| Docket Number | 839 |
| Citation | 10 Kan.App. 211,63 P. 287 |
| Parties | THE CITY OF ROSEDALE v. JAMES E. COSGROVE AND ANNIE COSGROVE |
| Court | Kansas Court of Appeals |
Decided January, 1901.
Error from Wyandotte court of common pleas; W. G. HOLT, judge.
Judgment affirmed.
CITIES -- Negligence -- Defective Footwalk. The city of Rosedale opened to travel twenty-nine feet in width of one of its streets, and in the remaining portion of the width of the street dug an open drain fifteen feet wide at the top, five feet deep, with sloping banks. Across this drain to an alley was placed a footwalk used by the inhabitants of the city. Held, that it was a question of fact for the jury to say whether it was negligence not to provide railings or barriers to said crossing.
Philip Erhardt, and Hutchings & Keplinger, for plaintiff in error.
Edwin S. McAnany, Daniel O'Byrne, and Leon Block, for defendants in error.
This was an action in the common pleas court of Wyandotte county against the city of Rosedale to recover damages on account of the death of the plaintiffs' child, occasioned by injuries received by the child through the negligence of the city in failing to keep one of its streets in a safe condition for public travel. By the authority of the city, a drain had been excavated along the side of Oak street about thirteen feet wide, five feet deep and several blocks in length. Across this drain, at the intersection of an alley, had been placed by some one a timber for a crossing from that portion of the street remaining intact to the property on that side of the street where the excavation existed. This crossing was left without rails or barriers, and the child of the plaintiffs, seven years of age, in crossing thereon had fallen into the excavation, upon stone in the bottom thereof, and had thereby received injuries which resulted in her death.
The main question was as the responsibility of the city for the unsafe condition of this crossing. Also, there was a question as to whether or not there was negligence, under all the facts and circumstances existing at the time, in the failure to erect rails or barriers to prevent accidents to those crossing the excavation.
There was a trial to the court and a jury, and a judgment for the plaintiffs in the sum of $ 2000. Upon the proceedings resulting in this judgment the plaintiff in error specifies the following errors of the trial court:
1. In overruling the objection of the city to the introduction of any evidence under the petition, for the reason that it did not contain or state facts sufficient to constitute a cause of action against it.
2. In overruling the city's demurrer to the plaintiffs' evidence.
3. In refusing to strike out evidence with reference to the decayed place in the timber constituting the crossing, for the reason that such condition was not averred as an act of negligence in the petition.
The fourth and fifth assignments of error are based upon instructions given to the jury; the sixth is based upon instructions refused which were requested by the city; and the seventh upon the denial to the city of a new trial.
In support of the first assignment of error, it is urged that the sole ground of negligence alleged in the petition is that the city permitted a foot-bridge spanning this excavation to be without guards or side-rails, and that it may be said as a matter of law that this was not an allegation of negligence at all; that as a matter of law it must be held that such a bridge was reasonably safe for any person who was fit to be abroad without an attendant. We must respond thereto that it cannot be said as a matter of law that this was not an allegation of negligence upon the part of the city. Whether it was negligence or not to leave the crossing without barriers or side-rails is a question of fact, to be determined by the jury under all the circumstances, upon the evidence at the trial. Under certain conditions it might be, and under others it would not be. (See Dillon on Municipal Corporations [3d ed.], vol. 2, § 1005; City of Wyandotte v. Gibson, Adm'x, 25 Kan. 236; City of Wellington v. Gregson, 31 Kan. 99, 1 P. 253; Maultby v. City of Leavenworth, 28 Kan. 745; Osage City v. Brown, 27 Kan. 74.) It being a question of fact, and not a question to be resolved by the court as a matter of law, the court properly overruled the demurrer to the petition, and submitted the evidence to the jury to say whether or not, under all the circumstances, the city was negligent in omitting the barriers or side-rails.
Under the second assignment of error...
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