City of Rosedale v. Golding

55 Kan. 167 | Kan. | 1895

The opinion of the court was delivered by

Johnston, J. :

In July, 1886, John Golding, who was about 17 years of age, resided with his father and mother in Rosedale, and worked in a packing house in Armourdale. On one of the principal streets of Rosedale there was a bridge which spanned Turkey creek, and the boy passed over this bridge iii going to and from his work. On the evening of July 1, 1886, while riding a pony over the bridge on his way home, he met a team, and, in passing, a trace or some other part of the harness of the team touched the pony, causing him to flinch and jump aside so as to precipitate the boy and pony off the edge of the bridge down into the creek, a distance of about 12 feet. The boy suffered severe and permanent injury from the fall. An action was brought by his father, Patrick Golding, to recover for medical and surgical attendance, hospital charges, loss of the pony, and for the loss of the services of John Golding from the time of his injury until he reached majority. Patrick Golding died soon after the commencement of the action, and Sarah Golding was appointed admin-istratrix of his estate, and the action against the city was duly revived in her name. The right of recovery was based on the neglect of the city in permitting the bridge to remain -without proper guards or railings on the sides of the same, and that it was therefore not in a reasonably safe condition for the use of the public. Upon the trial the jury returned a verdict in favor of the plaintiff and against the city of Rosedale in the sum of $2,386. t

The only serious contention of the city in the trial court was that the bridge had' been built and maintained by the county, and that therefore no liability could arise against the city for injuries resulting from its defective condition. While the bridge had been built by the county it formed a part of one of the principal streets of the city. It was the duty of the city to keep and maintain the streets and the bridges thereon in such a condition as to be reasonably safe for persons traveling upon and over the same, and it is liable in damages to anyone who suffers injuries resulting from a neglect to perform tliis duty. The fact that the bridge was in this instance built by or had been maintained at the expense of the county, does not relieve the city from the obligation to keep a bridge which is upon one of the public streets within its corporate limits in a. reasonably safe condition for the traveling public. A claim is made that there was no testimony showing the location of the bridge, but we find upon an examination of the record that there is abundant proof to show that it was within the corporate limits of Rosedale, and “a bridge situated wholly within the limits of the city is with its approaches a part of the public streets, and as such witlii-n the scope of the city's duties and liabilities.” (City of Eudora v. Miller, 30 Kas. 494. See, also, Comm’rs of Shawnee Co.v. City of Topeka, 39 Kas. 197.) It is clear that the city was negligent in failing to place a guard or rail along the side of a high bridge that was 60 feet long.

There is a claim that the boy was guilty of contributory negligence because he knew or should have known of the dangerous condition of the bridge, but under the testimony it cannot be said as a matter of law that lie was guilty of negligence in crossing the bridge. That question was submitted to the jury under proper instructions, and they having found that the city was negligent and the boy without fault, the finding is conclusive. The claim that the verdict is excessive is not sustained by the record, and the other questions which the plaintiff in error seeks to raise were not before the district court, and therefore are not reviewable in this court.

The judgment of the district court will be affirmed.

All the Justices concurring.