56 Kan. 135 | Kan. | 1895
The opinion of the court was delivered by
: On January 8, 1890, when David Wilson was passing along one of the principal streets near the business center of the city of Erie, a heavy wooden awning, which projected over the sidewalk
The first assignment of error is the., refusal of the court to compel the plaintiff to make his petition more definite by stating who erected the wooden awning the fall of which caused the injuries to Wilson. The objection is not good. The petition definitely stated
The second assignment of error is the overruling of a demurrer to the plaintiff's evidence. It is argued that the verified general denial put in issue the existence of the corporation, and that, before the plaintiff could recover, he must show that Erie was an organized city of the third class. Such proof became unnecessary by reason of the action taken by the city. It is true that in the petition there was an averment that Erie was an organized city, and that the general denial of the answer was verified. Before the answer was filed, however, the city made a general appearance in the case, and, without challenging its municipal character as described in the petition, it asked for affirmative relief. The action was begun against the city of Erie, and it was so entitled. In the body of the petition the defendant was described as a ‘ ‘ municipal corporation,” and a "city of the third class, created and existing as such corporation and city under the laws of Kansas.” It was summoned into court as an organized city, and its chief officer responded to the summons, and appeared generally for the city, as it had been characterized in the petition and summons. By the general appearance the city acknowledged its corporate existence, and its application for affirmative relief was based upon the assumption that it was a municipal corporation. Having thus appeared and solemnly admitted its existence, it had no right thereafter to deny its corporate existence, or to raise an issue which would require proof of the organization of the city. (Gulf Rld. Co. v. Shirley, 20
An objection is made to the charge of the court because it instructed the jury that notice to the city marshal of the defective and dangerous condition of the projecting awning is notice to the city. The duties of the marshal, as defined by the statute, do not include the inspection or repair of the streets or sidewalks, and ordinarily a notice to him of a defect would not be regarded as notice to. the city. In the present case, however, it appears that the person who was acting as marshal at and before the occurrence of the accident was also the street commissioner. Aside from this fact, the mayor stated, in response to an inquiry as to what care he took with reference to such awnings, that he had notified the marshal to look after such things and to keep them in good shape. Under these circumstances the instruction cannot be regarded as prejudicial error. It appears that the awning was defectively constructed, and was not supported in the manner required by- the ordinances of
The objections to the testimony are not material, and the proof appears to be sufficient to sustain the verdict.
Judgment affirmed.