51 Kan. 376 | Kan. | 1893
The opinion of the court was delivered by
This was an action for personal injuries resulting from a defective sidewalk, in which Betty Lewis recovered from the city of Eskridge a judgment for $600. The city asked for a new trial, and based its motion on numerous rulings said to be erroneous, which were made in the course of the trial, but the motion was denied. The defendant in error challenges our right to review these rulings, for the reason that the motion for a new trial was not made within the time prescribed by the code. We find that the record fails to show affirmatively when the motion for a new
It is first urged that the corporate existence of the plaintiff in error is not sufficiently set forth. In connection with a statement as to the existence of certain streets in the city of Eskridge, it is stated that they have been open and in public use “ever since the organization of said city, in August, A. D. 1887, as a city of the third class.” In another portion of the petition it is alleged that the defective walk was “negligently suffered to remain ever since the organization of said city as aforesaid until the day before the last general election.” In still other parts of said petition it is described as “said city,” and it appears that the date of said organization was prior to the time when the defendant in error suffered the injury of which she complains. We think the petition sufficiently stated the organization and corporate existence of the plaintiff in error.
Another objection to the petition is that there was a misjoinder of parties and causes of action. It appears that Moses Lewis was joined with his wife in bringing the action, and in claiming damages for loss of services, etc., resulting from the injuries suffered by his wife. On this ground the demurrer was well taken, and, if it had not been cured by subsequent proceedings, would require a reversal. The wife suffered a
The final objection to the petition is, that it fails to state facts showing negligence on the part of the city. An examination of the averments satisfies us that they are sufficient to withstand a demurrer. In substance, it is alleged that a piece of sidewalk on a public street of the city was built in such a negligent manner that when a person stepped on the outside of the walk it would tip up and throw the pedestrian to the ground, and that while the defendánt in error was passing over the defective walk, without negligence on her part, she was thrown to the ground and seriously injured. Enough is stated to show that the walk was dangerous, and that the injury resulted from the defect. It is said that the city must have notice or knowledge of the defect before a liability arises from resulting injuries. It is true that the petition should allege, either that the city had notice of the defect which caused the injury, or allege facts from which knowledge or notice can be reasonably inferred. In the petition it was stated that the walk in question was negligently constructed, and that the city, well knowing the premises, had negligently permitted it to remain in a defective condition until after the injury occurred. Under thése allegations, the city was chargeable with notice of the improper condition of the walk, from the time of its construction until after the injury was sustained. It was not necessary, as plaintiff in error contends, that the plaintiff should negative contributory negligence in her petition. She does state that the injury occurred without negligence on her part; and if this statement had been omitted it would not have been fatal, as contributory negligence is a
The record presents no error upon which to base a reversal, and hence the judgment of the court will be affirmed.