118 Kan. 670 | Kan. | 1925
The opinion of the court was delivered by
These actions arose out of an automobile cpllision in which George Bohm, the husband of Mary Bohm, was killed, and Joseph J. Bohm was injured. Each of the defendants filed a demurrer to each of the petitions. All the demurrers were sustained except those of Alex Racette and Edmer Racette, and each of the plaintiffs appeals.
Joseph J. Bohm sued to recover for the injuries sustained by him. Mary Bohm, the widow of George Bohm, sued to recover the damages sustained by herself and the children of George Bohm. Joseph
The action against the owners of the land is determined by Goodaile v. Cowley County, 111 Kan. 542, 207 Pac. 785, where this court said:
“The owners of land permitted high hedges to grow along public roads which crossed at the corner of their property; the hedge obstructed the view of one road from the other; a woman driving a home and buggy along the road approached the crossing; the horse became frightened at an automobile which suddenly appeared at the crossing oftthe roads; the woman was thrown out and injured. Held, that the owners of the land are not liable in damages for the injuries sustained by her.”
The appellants attempt to draw a distinction between that case and the present one, because in that case a horse became frightened at an approaching automobile and caused the accident. That action was based on negligence of the owner for not trimming the hedge as required by law, and the principle there declared controls here.
In Goodaile v. Cowley County, supra, the county had been sued, and the action had been dismissed against the county, so that there was nothing for this court to say concerning the liability of the county. In the present action neither the county nor the town
The plaintiffs seek to recover under section 68-301 of the Revised Statutes, which reads:
“Any person who shall, without contributing negligence on his part, sustain damage! by reason of any defective bridge, culvert or highway may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge, culvert or highway constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
Plaintiffs argue that 'the high hedge was a defect in the highway within the meaning of that statute. With that argument the court cannot agree. The hedge was no part of the highway. So far as the highway was concerned, it did not matter whether there was a hedge there or not. It may have been big or little, and the highway be in perfect condition. The petitions allege that the highway was in good condition. A defect in a highway is something that interferes with movement over it. Roads in good condition made dangerous by something on the sides of them are not for that reason defective within the meaning of the statute on which the plaintiffs rely. Counties and townships are liable, under certain conditions, for defects in highways, but not for dangerous conditions that exist on the sides of them.
The judgments are affirmed.
