104 Kan. 787 | Kan. | 1919
The opinion of the court was delivered by
In this case we decided, following the weight of authority, that the fact that an ordinance requires a sidewalk to be kept in repair by the abutting owner does not render such owner liable to a person.injured'by reason of a defect in the walk. In a motion for a rehearing, it is urged that the decision conflicts with Jenree v. Street Railway Co., 86 Kan. 479, 121 Pac. 510, which had not previously been cited. There the city allowed a street railway company to make use of a viaduct forming a part of a street, under an agreement that it should keep in repair the viaduct and the sidewalk forming a part thereof. The company was held liable in an action brought against it by a pedestrian who was injured through its suffering the walk to become unsafe. A number of similar cases are collected in a note thereto in Ann. Cas. 1913C, 217, where the general rule is thus expressed:
“A person required by contract, franchise, municipal ordinance, or statute to perform the duty resting on the municipality of keeping its streets in repair and safe for the passage of the public, is liable to a party injured by a defect in a street caused by the failure to perform such duty.”
This language may seem broad enough on its face to cover such cases as the present, and the reasoning back of it may be thought to be to some extent applicable thereto; but the fact remains that the rule is almost universally treated as not extending to one whose duty to keep a sidewalk in repair grows out of his ownership of the abutting property. The note referred to recognizes this distinction by expressly excluding “cases involving the liability of abutting owners.” In the cases to which, the rule above stated is applied, the care of the part of the street in question is ordinarily taken over by a public
The plaintiff, in his motion, refers particularly to two cases as contrary to the conclusion reached by this court: one of them (Delaware, L. & W. R. Co. v. Madden, 241 Fed. 808), as was said in the original opinion, was based on an ordinance specifically making abutting owners liable for injuries due to their neglect to make repairs; the other (Mullins v. Siegel-Cooper Co., 183 N. Y. 129), held an abutting owner liable for the unsafe condition of a walk created by an independent contractor because the situation was such that the contractor was to be deemed in effect his agent. That the prevailing rule is followed in New York is shown by City of Rochester v. Campbell et al., 123 N. Y. 405, where, under an ordinance quite similar to that here involved, the court held that the lot owner was liable neither to the person injured, nor to the city after it had paid his claim.
In the original opinion it was said that there was no allegation or proof that the teams which were driven across the walk, causing the defect complained of, belonged to or were controlled by the defendant. The correctness of this statement is challenged, on the ground that the petition alleged, and evi
The motion for a rehearing is denied.