39 Kan. 690 | Kan. | 1888
This is an action for damages for personal injuries alleged to have been sustained by the defendant in error by reason of a fall on a sidewalk on Laurent street, Topeka, on the 25th day of December, 1884. In 1883, the First Congregational church put down a sidewalk in front of its lot on Laurent street. It was built of oak plank which came off the bridge over the Kansas river. The planks were warped and of uneven thickness, having been worn from use on the bridge, and were so hard that when the sidewalk was laid down they were not all nailed through into the sleepers or stringers beneath, but the nails were driven down each side of the plank to fasten them — “toe-nailed,” as one witness stated it. The planks soon became loose, and the sidewalk was repaired in the summer or fall of 1884, by nailing and spiking down the loose planks. On the day the plaintiff was injured, she was walking along the street going east, and met three gentlemen going west. As they were passing her in single file one of them stepped upon the end of a plank outside of the stringer, and it being loose flew up, and she, tripping her foot against it, was thrown down, her left arm dislocated at the shoulder, and she was otherwise injured in her left side. There was considerable evidence offered as to the extent of her injuries.
The next objection urged is a more serious one. The court
“ Ques.: I will ask you to state, from your own observation of the condition of that walk, up to the time of its repair, whether that walk was in a safe condition or in a dangerous condition ? [Objected to as incompetent, irrelevant, and immaterial. Overruled, and defendant excepts.] Ans.: I considered it in a dangerous condition all the time until it was repaired.''
The time it was repaired, spoken of here, was in April following the date of the accident. This question was an improper one, and the court should not have permitted the witness to answer it. The witness was allowed to trespass upon the exclusive province of the jury. It was for them, and not for the witness, to determine whether the walk was dangerous or safe, or rather, reasonably safe. Holding that the admission of this testimony was error, we have the further proposition presented, whether it is substantially prejudicial to defendant. There seems to have been a great preponderance of evidence tending to prove that this sidewalk was dangerous to those who passed over it. This witness himself had fully and minutely set forth the condition of this sidewalk immediately preceding this testimony, and from his description there could have been no other deduction than that it was dangerous. He stated that from March, 1884, to the time of the accident in December, he had been in the habit of passing over the sidewalk very frequently; that although he was out of town a great deal, when he was at home he passed over it three or four times a day. He testified that it was very uneven, and when he walked on one edge of a plank the other would tip up; that they were always rocking; and that in the fall of 1884, when he was walking over the sidewalk with another party, who stepped on the edge of one plank, the end next him flew up and struck him, and he fell. He testified further:
“Ques.; You speak of the boards being loose; I will ask you to state how many of those planks were loose. Ans.: I don't know; I should judge they were all loose; you could tell by walking over them.
*694 “ Q. What was the effect or sensation of walking over them, as to whether they were loose or tight ? A. By the way they felt when I was walking over them they all appeared to be loose; I didn’t stoop down to feel them, but every one, as you stepped on them, seemed to be moving.”
One of the facts it was necessary to establish in this action was the condition of the sidewalk. Before the plaintiff could recover, she must prove that it was unsafe to walk over. Of course this could be proven in different ways, and by other evidence than that of other accidents. It is conceded that this is not the most direct and positive evidence of which the case is susceptible; but the simple fact that there were frequent accidents on this part of the sidewalk would tend to show that it was unsafe. When the question of the proper condition or safety of anything constructed is to be determined, evidence tending to show that it served the purpose for which it was designed is always competent, and often the most satisfactory and conclusive in its character. On the other hand, evidence to show that frequent and repeated accidents resulted from its use, would be testimony tending to show that it was not properly ■ constructed. This walk had been tested by actual use, and this evidence tended to show that it was dangerous and unsafe.
It is objected that the testimony presented new issues which
Contra: Collins v. Inhabitants of Dorchester, 6 Cush. 396; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 id. 342; Blair v. Pelham, 118 Mass. 420; Hudson v. C. & N. W. Rld. Co., 59 Iowa, 581.
The other objections urged are untenable. We recommend that the judgment be affirmed.
By the Court: It is so ordered.