106 Kan. 650 | Kan. | 1920
Lead Opinion
The opinion of the court was delivered by
The plaintiff brought suit against Delaware township in Wyandotte county to recover damages for injuries caused by a defective highway. There- was a verdict and judgment in her favor, from which the township appeals.
The. plaintiff, a widow 45 years of age, had been for several years conducting an auto livery business at Bonner Springs. The evidence showed that in Delaware township a public highway runs in a general southerly direction from the town of
Defendant’s first contention is, that chapter 237 of the Laws
“An act making counties and townships liable for defects in bridges, culverts and highways in certain eases.”
It is insisted that the act contains two subjects, and that the title indicates an intention to make counties and townships jointly liable for certain defects; that it is .one thing to say that a county shall be liable for injuries occurring upon a bridge, and a different subject to say that townships shall be liable for injuries upon a highway. It is conceded that if the title read, “An act relating to highways and providing for liability for defects therein,” it would be a single subject and express clearly what it intended to cover, but it is urged that even under such a title the- act must relate to highways and bridges upon such highways, or it would embrace more than one subject.
It has been held that in order to correctly interpret this provision of the constitution, its purpose must be taken into consideration, and it must not be construed in any narrow or technical spirit, but liberally on the one side so as to guard against the abuse intended to be prevented, and liberally on the other side so as not to embarrass or obstruct needed legislation ; that the title of an act may be as broad and comprehensive or as narrow and restricted as the legislature may choose to make it; it may include innumerable minor subjects, providing they are capable of being combined and united so as to form only one grand and comprehensive subject; that in considering the title, as well as the act, reference must be had to the object of the act and the evil sought to be remedied. (Division of Howard Co., 15 Kan, 194; The State v. Barrett, 27 Kan. 213.)
We think neither the title nor the act embraces more than one subject. The subject of the act is liability for injuries
The defendant insists, however, that under the statute the. defective bridge does not necessarily need to be upon a highway at all; that it has no connection with a highway, and attention is directed to the language of that part of the title which reads, “liable for defects in bridges, culverts and highways.” We think that in this act, as in all other legislation with reference to bridges and highways, the legislature considered that a bridge is part of a highway — which it always is. The first definition of a bridge given by Webster’s International Dictionary is, “A structure, usually of wood, stone, brick, or iron, erected over a river or other watercourse, or over a chasm, railroad, etc., to make a passageway from one bank to the other.” If an accident were caused by a defect in a bridge erected and maintained by a county on a township road, the county under certain conditions would be liable; if the injury were caused by a defect in the part of the road maintained by the township, the township would under similar circumstances be liable. Under the present road laws all public roads are either state roads, county roads, mail routes, or township roads (Gen. Stat. 1915, § 8772), and certain classes of bridges on a township road are county bridges, because it is made the duty of the county to build them where the cost exceeds a certain amount. (Gen. Stat. 1915, § 8825, as amended by Laws 1917, ch. 265, § 11.) As we have seen, it was the legislative purpose to define the liability of townships and counties in certain instances for defects in highways, and each provision of the act is fairly adapted to accomplish the purpose and has a logical connection with the general subject.
There is the further contention that section 722 has been repealed by subsequent legislation concerning roads and highways. The section was a part of article 1 of chapter 15 of the General Statutes of 1915, the title of the chapter being “Bridges.” The legislature of 1917 expressly repealed all the sections of that chapter from 708 to and including section 739 except section 722. The fact that in revising the law they allowed the liability statute to stand as it was, makes against the theory of the repeal of the latter by implication. Besides, there is nothing in the section inconsistent with or repugnant to the provisions of the amendatory act. Repeals by implication are not favored, and it has been declared that the courts cannot say that “one statute repeals another statute by implication . . . unless they are so repugnant to each other that under no circumstances can both be given force and effect.” (Newman v. Lake, 70 Kan. 848, syl. ¶ 3, 79 Pac. 675. See, also, Stephens v. Ballou, 27 Kan. 594; Keirsey v. Comm’rs of Labette Co., 30 Kan. 576, 2 Pac. 864; School District v. Coughlin, 88 Kan. 1, 127 Pac. 219.)
The presumption is against repeal by implication “where the legislature, in the amendatory act, has adopted the method of express repeal as to other provisions of the original act.” (The State, ex rel., v. Holcomb, 93 Kan. 424, 144 Pac. 266.) The rule is that both laws are to be sustained “If, for any purpose or under any circumstances, their provisions can both find scope for action.” (Newman v. Lake, supra [p. 856], and see authorities cited in The State, ex rel., v. Holcomb, supra.)
The main contention of the defendant is that the road where the plaintiff was injured is a county road and not a township road. The testimony shows that the road had been a public
“ ‘County roads,’ all roads designated as such by the board of county commissioners of a county connecting cities and market centers. . .
The county clerk testified that there was no record of the road from Bonner Springs to Loring having been designated or set apart as a county road. The county engineer, who was appointed in June, 1917, testified there was in his office, made under his direction and that of the board of county commissioners, a map showing the county roads as approved by the board. He began the preparation of the map in September, 1917, but could not say whether it was before or after the date of the accident, but that the map was the only one ever approved. It contains no reference to the road where the plaintiff was injured. It mentions, however, a road from the west
We are unable to concur in defendant’s statement that “there was evidence strongly tending to show the county alone had charge of this road.” On the contrary, we discover no evidence to show that fact, but think the overwhelming evidence showed that the road upon which the plaintiff was injured was a township road. In this connection complaint is made of instruction No. 4, which standing alone seems to be erroneous. As instruction No. 5 relates to the same question, we print the two together. They read:
“4. Before the defendant township can be made liable for damages in this case, you must find from a preponderance of the evidence that the road was within the township; that it was a road generally traveled by the public and maintained at public expense; that is to say, by Delaware township or Wyandotte county for the purpose and object of being used and traveled by people generally, as a part of the public highway system within the township.
“5. If you find that portions of said highway, of which the road at the point in question forms a part, was leased by the county of Wyandotte for the purpose of public travel as a public highway, and that the county built the bridge across Wolf creek on this road for the purpose of having the public use the road, and that the road at the point in question has not been designated as a county road by the county and state officials, and was taken charge of by the township officers and has been repaired and improved by Delaware township, I instruct you that the plaintiff, if otherwise entitled to recover, will not be precluded by the fact that said road was never laid out and established as a township road.”
There is ground for the contention that the jury were given ■to understand that if the road was maintained by Wyandotte county for the purpose of being used and traveled by the public generally as a part of the public highway system within the township, the township would be liable. No explanation is offered as to how instruction No. 4 came to be given. We are disposed to regard it, however, as not prejudicial to the defendant. The allegations of the petition were sufficient, we think, to charge that the road from Bonner Springs to Loring
Complaint is made of other instructions, particularly No. 7, which reads:
“The notice required by the statute means actual notice of the defects complained of as causing the injury. And, if the road in question was defective, as charged by plaintiff and had been so for more than five days prior to the accident, and the jury believe from a preponderance of the evidence that the township trustee had actual notice of the defective conditions at the place in question for at least five days before the accident to plaintiff; or that the trustee had actual notice for said length of time of the existence of such conditions of the road as would necessarily lead the trustee in the exercise of his faculties to logically conclude and know that the continuance of such conditions would probably result in caving or giving away of the road and injury to persons using the road while exercising due care for their own safety, then you should find for the plaintiff upon the question of whether or not the trustee had the five days’ notice required by the statute.” '
We have italicized the portion of the instruction which the defendant insists permitted the jury to find against the township if they believed from the evidence that the township trustee had only constructive notice. In considering the effect of the instruction, it is proper to consider also instruction No. 8, which reads:
“If the township trustee had knowledge for at least five days prior to the date of the accident that the road in question was cut away and undermined by the action of water and the elements and that the result of such action of the elements and water would be to make the road defective and unsafe for users thereof in the exercise of due care, then you may, if you so believe from the evidence, find that he had actual notice of the defect.”
We think the instruction is not open to the criticism suggested. In the defendant's brief it is said:
“It is one thing to have actual knowledge; it is another thing to have knowledge of some other fact that might eventually suggest investigation. That the trustee did know is one thing; that in the exer*660 cise of his faculties he would logically conclude that the defects complained of existed is something which is entirely different.”
In addition to the fact that the jury were expressly told that the trustee' must have actual notice of the defects complained of, the portion of the instruction objected to goes no further than to charge that if he had actual notice for five days before the plaintiff’s injuries, of the existence of such conditions in the road as would necessarily lead him, in the, exercise of his common sense, “to logically conclude and know” that the continuance of such conditions would probably result in the road caving in, then he had actual notice that it had been undermined. In the most recent case upon the necessity of showing actual notice, in place of constructive notice (Wagner v. Edwards County, 103 Kan. 719, 176 Pac. 140), it was said:
“Actual information may be implied, when the principal has at hand means of information which he can and ought to use” (p. 727);
and in Mosier v. Butler County, 82 Kan. 708, 109 Pac. 162, where a person was injured by reason of the giving way of a defective guard rail on the approach to a bridge, it was said that if the chairman of the county board “had knowledge of the condition of the guard rails, and that they were unsafe, as he testified, he had notice within the meaning of the statute” (p. 710), and that it was not necessary for the plaintiff to sho¡w that the chairman had knowledge of the defective condition of the railing at the exact spot where it gave way.
In Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581, an instruction using the following language was , approved :
“The conditions being such that injury to users of the highway was 'reasonably and naturally to be anticipated, .actual knowledge of the conditions obtained by the township trustee by personal observation while repairing the road constituted notice of defect.” (Syl. ¶1.) ■
In the opinion in that case it was said :
“To those upon whom rested the duty of keeping the highway free from defects the conditions themselves fairly spelled danger, and knowledge of the conditions was knowledge of a defect in the road.” (p. 639.)
There was evidence showing that the trustee had been notified by the assistant road overseer and others of the fact that the roadway at the place where the plaintiff was injured had
It is urged that the 11th and 19th instructions took away from the jury the question whether the road was a county or a township road, and charged as a matter of law that it was the duty of the township at all times to maintain the road in a reasonably safe condition. Of course, in its last analysis, the question of whether it was a county or township road was one of fact, but it is hardly conceivable that the court could have committed .error in instructing on this question in view of the evidence which was all one way.
Except for the error in instruction No. 4, which we must regard as nonprejudicial, we discover no error in the instructions given, and as they covered the issues fully, there was no error in refusing the instructions which the defendant asked.
The judgment is affirmed.
Dissenting Opinion
(dissenting in part) : With all due allowance for difference of opinion, the evidence relating to the plaintiff’s injuries convinces me that the verdict was excessive; and this court should now order a substantial reduction in the amount of the judgment, with the alternative that a new trial be granted if the plaintiff so prefer. (Civ. Code, §§ 307, 581, Gen. Stat. 1915, §§ 7209, 7485; Aaron v. Telephone Co., 89 Kan. 186, 195, 131 Pac. 582; Truman v. Railroad Co., 98 Kan. 761, 767, 161 Pac. 587; Williams v. Hanna, 105 Kan. 540, 547, and citations, 185 Pac. 17.)
