City of Horton v. Trompeter

53 Kan. 150 | Kan. | 1894

The opinion of the court was delivered by

JOHNSTON, J.:

While Frona Trompeter, a child about eight years of age, was passing over a street in the city of Horton, a sidewalk upon the same was caught up by the wind, blown over upon her, and she was thereby killed. Her father, Joseph Trompeter, as administrator of the deceased, brings this action to recover damages for her death, claiming that it resulted from the negligent construction and maintenance of the sidewalk. There was an abrupt slope on one side of the street, whereon the sidewalk was built, and one side of a portion of the walk was held up by props or stilts from one to three feet long, thus forming a pocket under the walk through which the wind could not escape. Instead of complying with the city ordinance which required the walks to be built of plank two inches in thickness, this walk was constructed of boards only one inch in thickness, and. at this point it had blown over several times before the killing of Frona Trom-. peter. Special findings were made by the jury, to the effect that the street commissioner, shortly before the accident, had repaired the sidewalk, but had failed to make it reasonably safe for the use of the public. It was also found that the city had notice’of the defective condition of the sidewalk before it blew over, and that such notice was given to the mayor and street commissioner. In answer to a question, the jury stated that the day on which the accident occurred was not an unusually windy one for that time of the year; and further, that Frona Trompeter died owning personal property of the value of $2.25. The jury assessed the damages of the plaintiff below at $2,500, and the city alleges several grounds for reversal.

*• wesiaewaik negligence, The negligence of the city in building and maintaining the sidewalk which caused the death of the child cannot be depied. The contention that there was contributory negligence on the part of the child or her parents has not been maintained. It is true that they had frequently passed over the walk; had probably observed its general character, and may have known that it had previously been turned over by the wind. They had a right to assume, however, that it had been properly repaired and safely anchored to the ground by the city authorities. Even a knowledge that it was somewhat defective would not debar them from the use of.the street, nor would such use with notice that it was unsafe or out of repair necessarily constitute contributory negligence. (City of Emporia v. Schmidling, 33 Kas. 485; Langan v. City of Atchison, 35 id. 326.) While it appears that a strong wind was blowing, there is testimony to sustain the finding of the jury that it was not an unusual wind, and whether the wind was unusually strong, or whether there was negligence in the child going or being permitted to go out upon such a day over this walk, were questions of fact for the consideration and determination of of the jury.

2‘ -jurisdiction, !■ Minor’snestate sumption. There is a further contention, that the deceased left no estate to be administered, and that the action of the probate court in appointing an administrator was absolutely void. The deceased was an inhabitant of the state at the time of her death, and whether necessary to the granting of administration or not, there appears to have been an estate sufficient to give jurisdiction for the letters that were issued. The probate court is presumed to have lawfully exercised its jurisdiction, and the steps taken in that court appear to be regular, and make a prima fade showing of authority to issue the letters of administration. Such letters may be granted upon the estate of a minor as well as upon that of an adult, and the inventory recites property valued at $10.75. Possibly some of that inventoried cannot be regarded to have been that of the child, but some of it undoubtedly can, and the finding of the jury, based upon competent testimony, shows that she had property, although not very valuable, which in any event would justify administration. (Wheeler v. St. J. & W. Rld. Co., 31 Kas. 640; U. P. Rly. Co. v. Dunden, 37 id. 1.)

The remaining objections are made against the instructions of the court, most of which relate to the question of contributory negligence. In view of the finding of the jury that it was not an unusually windy day when the girl was killed, this question is of little importance. The fourth request needs no attention, because no exception to its refusal was taken, and the fifth might properly have been refused on the ground of ambiguity. The seventh related to the subject of whether it was negligence for the mother to send the child out in an unusual wind or storm; but this question has become immaterial through the finding of the jury.

The measure of damages was correctly stated by the court, and while the instruction might have been elaborated, no request of that kind was made, and we think no error in that respect was committed. While the damages were liberal, they cannot, within the rules of law, be said to be excessive, and we" find no ground for disturbing the verdict of the jury.

Judgment affirmed.

All the Justices concurring.