The City of Topeka v. The Central Sash & Door Company
| Decision Date | 08 January 1916 |
| Docket Number | 19,797 |
| Citation | 154 P. 232,97 Kan. 49 |
| Court | Kansas Supreme Court |
| Parties | THE CITY OF TOPEKA, Appellee, v. THE CENTRAL SASH & DOOR COMPANY, Appellant |
Decided, January, 1916.
Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. DEFECTIVE SIDEWALK--Defect Caused by Abutting Property Owner--Liability. Where a city has been held liable for injuries sustained by a person lawfully using a defective sidewalk the city can recover from an abutting property owner whose active fault caused the defective sidewalk.
2. SAME. The liability of an abutting property owner whose active fault caused a defective condition in a sidewalk does not depend on that liability being fixed by ordinance or by notice to repair.
J. G. Slonecker, and J. M. Stark, both of Topeka, for the appellant.
George P. Hayden, and A. C. Bartell, both of Topeka, for the appellee.
This action was brought by the city of Topeka to recover from the defendant the sum of $ 631.15, with interest, which the plaintiff alleged it was compelled to pay out in satisfaction of a judgment obtained against it for personal injuries sustained by a pedestrian on account of a defective sidewalk. The defendant demurred to the petition. This demurrer was overruled. From this the defendant appeals.
The petition alleges that the defective condition of the sidewalk was caused by the defendant in driving horses and wagons over the walk in front of a building owned and used by the defendant in its private business; that the defendant then permitted the walk to remain in that defective condition; that the ordinances of the city prohibited riding or driving over the sidewalk; that the defendant was notified of the action against the city and asked to defend in that action; that no defense was made by the defendant; and that the city paid the judgment rendered against it.
The argument of the defendant is that the parties to this action are in pari delicto and that therefore the one can not recover from the other; that because the defendant is an abutting property owner and had a right to use the walk, it was under no duty to repair and therefore it is not liable; that the ordinances of the city do not render the defendant liable; and that because there was no notice pleaded requiring the defendant to repair the sidewalk, it is not liable.
1. The defendant...
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