Vickers v. County

• Decision Date: 05 February 1898
• Docket Number: 10444
• Parties: R. J. VICKERS v. THE BOARD OF COUNTY COMMISSIONERS OF CLOUD COUNTY et al
• Court: Kansas Supreme Court

52 P. 73

59 Kan. 86

R. J. VICKERS v. THE BOARD OF COUNTY COMMISSIONERS OF CLOUD COUNTY et al

No. 10444

Supreme Court of Kansas

February 5, 1898

Decided January, 1898.

Error from Cloud District Court. F. W. Sturges, Judge.

Judgment reversed and cause remanded.

R. W Turner and Pulsifer & Alexander, for plaintiff in error.

L. J Crans, for defendants in error; A. L. Wilmoth, of counsel.

OPINION

JOHNSTON J.

On July 18, 1894, A. L. Vickers was killed by the falling of a defective bridge, which had just been constructed in Cloud County, and his widow brought this action against the County, and the persons holding the offices of County Commissioners and bridge commissioner, to recover damages sustained by reason of her husband's death. In her petition she alleged, that the Board of County Commissioners authorized and contracted for the construction of a stone-arch bridge over a stream, upon plans prepared by William M. McCall, who had no knowledge or skill of bridge architecture, and which were not in accordance with the principles of applied mechanics; that the Board of Commissioners and McCall were notified in advance that the plans were defective and that a stone-arch bridge built in accordance therewith could not and would not stand; that with this knowledge the Board contracted with J. M. Hass to construct the bridge, although Hass protested that the plans were defective and that a structure built thereunder would be dangerous; that Hass proceeded to, and did, construct the bridge under the supervision of McCall, who was appointed by the Board as bridge commissioner, and it was provided in the contract that payment for the structure was not to be made until the bridge was accepted as complete by McCall. Vickers was employed in the construction of the bridge, and it is alleged that he was an unskilled workman and had no knowledge of the laws of applied mechanics or of the science of bridge building; that he had no knowledge of the defective character of the plans or of the bridge built thereunder. It is further alleged that the bridge was built strictly in accordance with the plans, and under the direction and supervision of the bridge commissioner appointed by the Board, and that after the completion of the bridge in accordance with the plans, and after the same had been accepted by McCall, the commissioner, the arch of the bridge fell upon Vickers, who at the time was engaged in removing some of the appliances that had been used in the construction of the bridge. There were other averments as to the particular defects in the plans and in the bridge, also as to the knowledge of the defects by the defendants and the want of knowledge of such defects by Vickers; and, further, that his injury and death were not the result of his own negligence. But a fuller recital of these averments seems to be unnecessary.

The answer of the defendants was a general denial and a charge of contributory negligence. The trial court ruled that the averments of the plaintiff did not warrant a recovery against the defendants, refused to hear any testimony, and directed a verdict in favor of the defendants.

Accordingly to the allegations of the petition and the offer of proof thereunder, the fall of the bridge and the resulting injury and death of Vickers were due to the wrongful acts and omissions of the defendants. The widow is, therefore, entitled to maintain an action against them and to recover for the death of her husband, providing he could have maintained an action against them for the injury if he had lived. Civil Code, § 422. This Code provision is remedial and prospective, and is as applicable to statutory liabilities created after its enactment as to those created or existing before that time. Is there a liability against the defendants, or any of them?

It is contended on behalf of the plaintiff that there is an express provision creating a liability against the County. In 1887 ...