White v. The City of Kansas City

• Decision Date: 09 February 1918
• Docket Number: 21,324
• Citation: 102 Kan. 495,170 P. 809
• Parties: W. E. WHITE, Appellant, v. THE CITY OF KANSAS CITY, Appellee
• Court: Kansas Supreme Court

170 P. 809

102 Kan. 495

W. E. WHITE, Appellant, v. THE CITY OF KANSAS CITY, Appellee

No. 21,324

Supreme Court of Kansas

February 9, 1918

Decided January, 1918.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HIGHWAYS--Heavy Vehicles--Duty to Plank Bridges and Culverts--Statute Applies to Horse-drawn Wagons. A purpose to legislate concerning horse-drawn wagons, as well as automobiles, is shown by the amendment of a statute requiring certain precautions in crossing a bridge, the relation of the two acts being indicated by the following reprint, in which omitted words are enclosed in brackets, and added words are italicized:

"That all persons owning, controlling, operating, or managing steam or gasoline threshing-machines, sawmills, [or steam] traction engines or transfer wagons or vehicles of any kind used for the transportation or distribution of oil or other merchandise or commodity and [in] moving the same over the public highway are required to lay down planks not less than one foot wide, three inches in thickness, and of sufficient length, on the floor of all bridges and culverts situated on the public highway, while crossing the same, for the wheels of said engine[s] of any kind to run on while crossing such bridge or culvert; Provided, That this section shall not apply to any machine or engine not exceeding [one] three tons in weight. . . ."

James L. Hogin, and Roy R. Hubbard, both of Kansas City, for the appellant.

H. J. Smith, Lee Judy, and Thomas M. Van Cleave, all of Kansas City, for the appellee.

OPINION

MASON, J.:

W. E. White, while hauling rock in a horse-drawn wagon, was injured by the giving way of a bridge in Kansas City, Kan. He brought an action against the city. A demurrer to his evidence was sustained, and he appeals.

The wagon used by the plaintiff weighed 1,800 pounds and carried a load of 5,200 to 5,500 pounds. He had not laid down planks for the wheels to run on while crossing the bridge. The case turns upon the question whether the law requiring that to be done in the case of loads weighing more than three tons applies to horse-drawn vehicles, or is limited to those moved by mechanical power. The first legislation on the subject was enacted in 1886. (Gen. Stat. 1909, § 7317.) The statute in effect at the time of the injury was passed in 1911. It was not in form an express amendment of the earlier one; but in the course of a general revision of the road law, the section cited was repealed and a new one inserted which was obviously based upon it, the practical effect being to amend rather than to repeal it. (Gen. Stat. 1915, § 8799.) The relation of the two sections is shown by the following reprint, in which words used in the original act but omitted from the amendment are inclosed in brackets, and words added by the new act are italicized:

"That all persons owning, controlling, operating or managing steam or gasoline threshing-machines, sawmills, [or steam] traction engines or transfer wagons or vehicles of any kind used for the transportation or distribution of oil or other merchandise or commodity and [in] moving the same over the public highway are required to lay down planks not less than one foot wide, three inches in thickness, and of sufficient length, on the floor of all bridges and culverts situated on the public highway, while crossing the same, for the wheels of said engine[s] of any kind to run on while crossing such bridge or culvert; Provided, That this section shall not apply to any machine or engine not exceeding [one] three tons in weight. Provided further, That no person, firm or corporation seeking to recover damages against any city, township or county under the provisions of this section, shall secure a judgment therein, unless the jury shall find that such person, firm or corporation had before receiving the injury complained of, complied with the provisions of this section."

The addition of "gasoline" to the enumeration of the kinds of threshing-machines referred to was almost a matter of course in view of the extended use of the gasoline engine. The word "steam" as it appeared the second time in the original section was obviously omitted in the revision on the theory that it was superfluous, possibly because the prior phrase "steam or gasoline" was regarded as qualifying sawmills and traction engines as well as threshing-machines, but more probably because such a qualification was deemed unnecessary in referring to vehicles which by their very nature are self-propelled. The important and doubtful question is as to the intention indicated by adding to the list of vehicles covered by the act the clause "or transfer wagons or vehicles [of any kind] used for the transportation or distribution of oil or other merchandise or commodity." The city maintains...