The City of Wellington v. Gregson

• Decision Date: 01 July 1883
• Citation: 31 Kan. 99,1 P. 253
• Parties: THE CITY OF WELLINGTON v. WM. C. GREGSON
• Court: Kansas Supreme Court

1 P. 253

31 Kan. 99

THE CITY OF WELLINGTON v. WM. C. GREGSON

Supreme Court of Kansas

July 1, 1883

Error from Sumner District Court.

ACTION by Gregson against the City of Wellington, to recover damages for bodily injuries. Trial at the April Term, 1882, before H G. R., judge pro tem., and a jury. Verdict for plaintiff for $ 325. New trial denied, and judgment thereon for plaintiff. The defendant city brings the case here. The opinion states the facts.

Judgment reversed and case remanded for new trial.

Herrick & George, for plaintiff in error.

McDonald & Parker, and Isaac G. Reed, for defendant in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

Defendant in error (plaintiff below) commenced his action in the district court of Sumner county to recover of the city of Wellington damages for personal injuries received in consequence of being thrown from a buggy on the streets of said city. The undisputed facts are, that while driving in a buggy in the early part of the evening of July 3, 1881, the wheels of the buggy struck against a post on the corner of G and Third streets, upsetting the buggy, and throwing the plaintiff violently upon the ground. The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $ 325. It appears that about one year before the accident the owner of the adjoining lots set out some trees in front of his premises, and put this post in the street about twelve feet from the corner of his lots for the purpose of preventing wagons from striking against the trees. The post was about two feet in height above ground, slanting at an angle of about 45 degrees from the traveled track toward the lots. It appears that grass and weeds had grown up about the post, though to what extent they concealed it is not perfectly clear from the testimony. Both streets cornering here were perfectly level, and there was a traveled track passing from one street to the other, and near to this post. Exactly how near it came to the bottom of the post is a matter of dispute on the testimony. The errors complained of are in the instructions.

Counsel for the city criticize the language of several instructions, in that they affirm the liability of the city unless the injury was caused, or occasioned, or produced by the fault or negligence of the plaintiff, claiming that this implies that the fault or negligence of the plaintiff must be the sole and not a mere contributing cause of the injury. We shall not stop to consider how far this criticism is just, for in the principal instructions the rule is stated with unquestionable accuracy, and we cannot think that the jury were misled in the language used in those other instructions. We think, however, that the court erred in one instruction, and erred to the prejudice of the substantial rights of the city. That instruction reads as follows:

"I say to you as a matter of law, that anything placed so near to the traveled part of a public road as to be liable to be run upon or against without diverting wholly from the traveled way, and when run upon or over is liable to produce delay, accident or inconvenience, such obstacle so placed is such an obstruction as renders a city liable for injuries sustained by reason thereof, if not produced by want of ordinary care and prudence of the person injured."

Now this is not correct as a general proposition is not correct as applied to the facts of the present case, and improperly withdraws from the jury one of the questions of fact which it was its province to determine. As beyond any question the post referred to was within a foot or two of the traveled track, if not immediately on its border, it was liable to be run upon or against without diverting wholly from the traveled way, and was of such height that a buggy running over it would, as in this case, upset; and thus delay, accident or inconvenience be caused. Therefore, within the terms of the instruction, it was such an obstruction as rendered the city, as matter of law, liable for the injuries it occasioned. In other words, the court affirmed as matter of law negligence on the part of the city, leaving for the determination of the jury really only the question of contributory negligence. Now the existence of a post or other object large enough to upset a buggy or wagon running over it within a carriage-width of a traveled track, is not necessarily, and as a matter of law, such an obstruction as renders the city liable for injuries occasioned thereby. It may or may not be such an obstruction, depending upon a variety of circumstances; and ordinarily, whether it is or...