61 P. 689 | Kan. | 1900
The opinion of the court was 'delivered by
Near the Riverview station, and between the Grandview and Park branches of the elevated street-railway in Kansas City, Kan., is a lot owned by the Ferd. Heim Brewing Company. On the east end of the lot was a house occupied by the Hicks family, and on the west end was a small business house occupied by a cobbler. The lot being immediately south of the Riverview station, persons who were transferred from the Grandview to the Park line, as well as those living west and south of the station, generally passed over the lot when intending to take passage on the Park line of the street-railway, and those going west or south from the Park line station, or to take passage on the Grandview line, did the same. A path had thus been made between the houses mentioned and cinders had been placed thereon. A water-closet was erected on the lot, near the cobbler’s house, which was used by the Hicks family. About July 1,1897, the owner of the lot, intending to erect a new building thereon, tried to gain possession of the same, and to induce the tenant, Hicks,- to remove therefrom. It was claimed that consent was given, and a contractor removed the water-closet and other
On the night of December 25, 1897, and before the removal of Hicks, Mazie A. DeTarr, while walking across the lot with a view of taking a Park line car, fell into the vault and was injured. She and her family had passed over the lot in the morning, but she did not observe that a board had been removed from over the vault, or that there was an opening there. On returning at night she noticed a car coming and increased her speed so as to reach the station in time, and, while walking rapidly, she diverted her course from the path, and fell into the hole. She brought this action, claiming that, there being a path across the lot which was habitually used by the public, the owner was guilty of negligence in not filling up the vault and in leaving it without a secure cover. The defendant denied that it was guilty of negligence,
Apart from the special findings, it must be assumed that all other controverted facts which had support in the testimony were determined in favor of the defendant. It must be taken as established that the hole was securely covered with boards when the defendant and its employees were compelled to quit the premises by the injunction proceeding, and that before the accident the defendant had no notice that any part of the cover had been removed or that the hole was open. It likewise must be assumed that the defendant was not in possession or control of the premises when the accident happened, nor for more than two months afterward. The path across the lots had been used by the public for a long time — so long that permission by the occupant and owner must be presumed. The plaintiff, .therefore, was not to be regarded as a trespasser or as a mere licensee, as she used the way with the implied permission of those in control of the premises. If the defendant had the possession and control of the lot, it owed a duty to the public to
It is a rule of the common law, applicable here, that “the occupier and not the landlord is bound as between himself and the public so far to keep the premises in repair that they may be safe for the public, and such occupier is prima facie liable to third persons for damages arising from any defect.” (1 Thomp. Neg. 317. See, also, Fisher v. Thirkell, 21 Mich. 1.)
The objection to the admission in evidence of the injunction proceedings is not well founded. It tended to show who was in possession and control of the premises, and to some extent who was responsible for the casualty. It was some explanation why the defendant did not completely fill up the vault and why a cover was nailed over it. The papers in the proceeding in error attempted to be taken from, the order dissolving the injunction, although first received in evidence, were subsequently withdrawn from the jury, and no error can be predicated on that. The testimony as to the notices to quit possession and the pro