40 Kan. 577 | Kan. | 1889
Opinion by
Numerous errors are presented for review, many of which we will not consider, but will attempt to follow counsel through his elaborate brief, and take up such of the errors presented as we deem entitled to consideration. The first alleged error-which we will examine is that the plaintiff was permitted to testify, over the objection of the city, as to his poverty; that he had a family; and the age of his wife. The objection to this testimony was overruled, and plaintiff testified that he had a family consisting of a wife 27 years old, and one child, and that he had about ninety dollars due him for work. At the close of this testimony, the court, of its own motion, struck out all of that part objected to by the defendant, and informed the jury that they should not consider it; that it had committed an error in admitting it, and that they must not give it any consideration in arriving at their verdict. This testimony was clearly erroneous, and ought not to have been permitted to go to the jury; but we are unable to see how this testimony could in
The second error assigned is, that the court permitted witnesses Shook, Huffman, Reitler and others to testify that the place where the plaintiff fell was a dangerous place. On cross-examination the same statement was brought out, and in fact the city marshal testified to the dangerous character of the place and directed Mosher to put a rail around it. Admitting that this testimony was all incompetent, yet we cannot
All the other assignments of error are as to the charge of the court and the refusal of the court to give the instructions asked for by the defendant. Before passing to these instructions we are free to say that, after a careful examination of the instructions given by the court and those requested by the defendant, we are of the opinion that a large number of the instructions asked for by the defendant ought to have been given, and that the court committed error in refusing to give some of those instructions, and if not cured by the findings of the jury such errors will require a reversal of the cause. The
“Every person passing over the sidewalk of a city is required to exercise such care and diligence in doing so as men of ordinary care and diligence would use under similar circumstances. In determining whether the plaintiff used such care at the time he received the injuries complained of, it would be proper to consider his knowledge of its condition, the time, the light or darkness at the time and place the injuries were received, his manner of traveling, and any other fact appearing from the evidence which would tend to show such care, or the want of it; and if you find from the evidence that the plaintiff directly .contributed to the injury by such negligence, you will find for the defendant.”
And the court in lieu thereof, gave the following:
“7. In passing over the sidewalks of the city of Kinsley, the defendant, the plaintiff was required to use such care and diligence as ordinary persons employ in passing over the streets and sidewalks of the same; and in connection with this injury you may consider the knowledge of the plaintiff in relation to the dangerous condition of the walk.”
The criticism of the learned .counsel upon this seventh instruction, we do not think well taken. The jury doubtless
Defendant also requested the court to give the ninth instruction, which is as follows:
“If you find from the evidence that the place where the accident occurred was necessarily more dangerous than the ordinary streets and sidewalks, by reason of improvements
The ninth instruction requested, we think, was properly refused; not, perhaps, that it was entirely covered by the instructions given by the court, but because the instruction taken by itself was wrong. It implies that under some circumstances a person in passing over a street of a city, knowing its condition, is required to use more than ordinary care and caution to avoid an accident. This is not the law in this state. (City of Emporia v. Schmidling, 33 Kas. 485.) Ordinary care and caution is all that is required at any time to avoid the class of injuries involved in this action. "What ordinary care may be under a given state of facts, is the question. In one case it may require greater vigilance than it would under another state of facts; but, after all, it would simply be ordinary care under the circumstances surrounding that particular case, and nothing more. It would have been well for the court to have included in his general charge, and he ought to have done so, an explanation of what ordinary care would be under certain facts. He ought to have said to them, if the plaintiff knew the street, and that the place was dangerous, and the night was dark, then it required greater vigilance and care than it would under other conditions and at other times. (Corlett v. City of Leavenworth, 27 Kas. 673; Osage City v. Brown, 27 id. 74.) But this care, whatever it would be, would still be ordinary care.
The tenth instruction asked by the defendant, and refused by the court, in substance directed the jury that if the plaintiff at the time he passed over this sidewalk knew that the sidewalk was unsafe by reason of the obstructions and excavations, and he still persisted in passing over the walk
The court also refused to give instructions 13, 14, 16 and 17 asked for by the defendant, and gave nothing in their stead. These instructions ought to have been given. They were general in their character, and some of them such as are ordinarily given in this class of eases. While we believe as a rule that too many instructions are given to juries, yet in this class of cages there ought to be some of these general instructions given, such as are embodied in No. 16, which is as follows:
“That when witnesses are otherwise equally credible, and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior; and also to those who swear affirmatively to a fact rather than to those who swear negatively, or to a want of knowledge or recollection.”
This instruction, or one of this character, ought usually to be given in cases where there is evidence tending to show certain facts by evidence not positive in its character; or in other words, the distinction between negative and positive testimony. But after a careful investigation of this case we are not willing to reverse it on account of the failure to give this instruction, for when this case is examined there is very little evidence that is of a negative character. True, a few witnesses testi
As said already, we think there was error in the court refusing to give some of these instructions requested by the defendant, but yet we think the necessity for these instructions
In conclusion, we may say that the uncontradicted evidence in this case shows: First, that the place where the injury occurred was a dangerous place; second, that its character was known to the city and to the persons erecting the building; third, that it was not only open that night, but had remained uninclosed and unprotected for a greater part of the time said building was under construction. These facts being substantially undisputed, there were but two things for the jury to find or the court to instruct upon, and they were the contributory negligence of the plaintiff and as to the amount of his recovery. The jury found that he was not negligent, and we think the evidence sufficient to sustain the verdict on the amount of recovery. (City of Salina v. Trosper, 27 Kas. 544.)
We therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.