The City of Topeka v. Hempstead

• Decision Date: 05 June 1897
• Docket Number: 10002
• Citation: 58 Kan. 328,49 P. 87
• Parties: THE CITY OF TOPEKA v. ELIZABETH D. HEMPSTEAD
• Court: Kansas Supreme Court

49 P. 87

58 Kan. 328

THE CITY OF TOPEKA v. ELIZABETH D. HEMPSTEAD

No. 10002

Supreme Court of Kansas

June 5, 1897

Decided January, 1897.

Error from Shawnee District Court. Hon. A. H. Vance, Judge pro tem.

Judgment affirmed.

W. A S. Bird, for plaintiff in error.

Bain & Forbes, for defendant in error.

OPINION

JOHNSTON J.

John C. Hempstead was killed by falling from a high bridge erected upon a street of the City of Topeka. He was engaged in dairying; and on Sunday morning, May 22, 1892, was on his way to deliver milk to a customer. He was driving a mare attached to a light wagon. As he was driving down a hill approaching the bridge, one of the back straps of the harness gave way striking and frightening the mare, so that she started toward the bridge upon a gallop. Hempstead undertook to hold and guide the mare, and did gain partial control over her; but the approach to the bridge being narrow -- not much wider than the wagon -- and there being no barrier or protection on the sides, and the mare having slightly veered from the center, the wagon slid off, dragging the mare and Hempstead down to the bottom of the creek. The approaches were made of earth and stone and were about twenty feet high. The embankment had been washed away to some extent, and the roadway was slanting at the point where the casualty occurred. The widow, Elizabeth D. Hempstead, brought this action, alleging that the approach to the bridge was defective and dangerous, and that the City was negligent in not protecting the same with barriers or railings; and upon the trial a verdict for three thousand dollars was rendered in her favor and judgment entered thereon. It is contended that the City is not liable, because the defect in the bridge was not the sole cause of the injury, but that the running away of the horse, which was entirely beyond the control of the driver, should be regarded as the proximate cause.

We entertain no doubt that the evidence justified the verdict of the jury. The bridge, which was one of the thoroughfares of the City, was obviously defective and dangerous. The failure of the city to erect for the safety of travelers a barrier or other means of protection on the sides of so high an embankment, was culpable negligence. The fact that the mare took fright and started to run will not prevent a recovery. According to the findings of the jury, based upon sufficient evidence, Hempstead did not lose control of the mare, and he was in the exercise of reasonable care when the injury occurred. The fright of the mare, it is true was caused by the breaking of the harness; but it is found that Hempstead was not guilty of any negligence in this respect, and there is the further finding that the injury...