8 Kan. App. 671 | Kan. Ct. App. | 1899
In June, 1894, defendant in error was performing labor for the city of Winfield in lieu of his poll-tax. The first day he worked on the streets, and on the morning of the second day, at the request of the street commissioner, he went to a gravel-bank belonging to the city and which had been in use for two seasons, to assist in loading wagons with material to be used on the streets. The petition alleged that the gravel-bank was an extremely dangerous place, and known to be such by the. city officials and the street commissioner, and that the plaintiff was not aware of its dangerous character; and that while the plaintiff was laboring the bank suddenly caved in, a large quantity of sand and gravel falling upon him and breaking his left leg in two places and crushing his left ankle, whereby he was made sick and unable to walk or to labor for a long period, and was permanently crippled. It was further alleged that said injuries caused the plaintiff to expend $25 for surgical attendance, $60 for nursing, and $75 for board, and to lose the position wherein he had been laboring prior to the injury, to his damage in the sum of $65. Judgment was prayed for in the sum of $1000. The defendant’s demurrer to the petition being overruled, it filed an answer containing a general denial and an averment that the plaintiff’s injuries, if any, resulted from his own negligence. The jury returned a general verdict in favor of the plaintiff in the sum of $320, and also a number of special findings.
The substance of the special findings is as follows : That the plaintiff was twenty-seven years old at the time of the injury and was a person of ordinary intelligence ; that the gravel-bank was composed of clay,
The special findings ar.e supported b’y competent evidence. While there was testimony indicating that in the opinion of the street commissioner the bank was not necessarily a dangerous place, it -was not disputed that it was his practice to notify the workmen that the place was dangerous. The wagon stopped thirteen feet or more from the base of the gravel-bank, which was practically perpendicular at that point, and Peeden and the other shovelers were
The plaintiff testified that he had never been at the gravel-bank before axxd that he did not specially observe it when he began to work, except that he saw it was almost perpendicular and that there was a slight projection of a small mass at the top. He stated-that he had no previous knowledge of the danger to be apprehended from the bank falling, and that he had no thoxxght of danger while at work. The sand-bank had been purchased by the city that the material might be used in improving streets.
The supreme court has held, in the case of In re Ashby, 60 Kan. 101, 55 Pac. 336, that a man woi'king on the streets of a city, under an ordinance requiring the performance of two days’ labor or the payment of three dollars, as poll-tax, is a laborer for the city. Under that decision, we must hold that the relation of employer and employee existed betweexx the parties in this case. While the duty of repaixdng and improving its streets was imposed on the city of Winfield by law, it is evident that the action of the city in purchasing and in using the gravel-bank was not within the scope of the duty thus imposed. In the use of the
Having become the owner of the gravel-bank, the city, in managing it, is to be held to the same degree of care in preventing damage to others as would be required of a natural person. The doctrine which we think is controlling in this case is thus stated by the supreme court of Ohio in the case of City of Toledo v. Cone, 41 Ohio St. 149, 161:
“ Thus, if a municipal corporation acquires real or personal property, and in the discharge of what may be deemed ministerial duties in respect to the same an individual receives injury, through the negligence of its officers or servants, it should be held responsible to that individual. Though not liable for a defect of judgment or discretion, while acting as a state instrumentality in the exercise of legislative functions, yet having, like a private corporation or natural person, become the owner or obtained the control of property, it should not be relieved from the operation of the*676 general maxim, that one should so use his own as not to injure that which belongs to another.”
We have examined the leading cases cited by counsel for plaintiff in his clear and able brief, with the result that we think none of them in principle conflicts with the views we have expressed.
It is contended that the court erred in refusing to consider the motion of the defendants below to retax the costs. In the case-made the motion to retax appears after the certificate as to the contents of the case-made and precedes the certificate of the trial judge. In the case of Mutual Ins. Co. v. Sackett, 5 Kan. App. 660, 48 Pac. 994, it was held that all statements in the certificate of the trial judge not necessary for the purpose of merely showing that the case was properly settled should be treated as surplusage. Under that decision, the action of the trial court in respect to the motion to retax is not reviewable.
As to the alleged error in the admission of the deposition of the witness Lawrence, we find that his testimony was merely cumulative and not essential to the plaintiff’s case. The error is not therefore reversible. The judgment of the district court is affirmed.