The opinion of the court was delivered by
Hannah C. Higman, the wife of appellant, fell into a ravine to which a long-traveled highway led. The culvert over the ravine had washed ■out and the township authorities moved the highway to one side about forty feet and made a new crossing over the ravine, leaving the old highway open for travel without any guard or barricade. On a dark night Mrs. Higman, who was unfamiliar with the conditions existing there, followed the old highway and fell into the ravine, suffering severe injuries. This action was brought by her husband to recover damages for the loss of her services and companionship, and also for the expenses incurred in nursing and caring for her while suffering from the injuries resulting from the fall. An action had previously been brought by her to recover the damages which she sustained, and .the facts concerning the injury are fully stated in the review of that proceeding. (Higman v. Quindaro Township, 89 Kan. 476, 132 Pac. 215.)
In his petition the appellant alleged substantially the facts stated in his wife’s petition, but he failed to state that the township had notice of the defect in the highway. Under the statute (Gen. Stat. 1909, § 658) imposing a liability upon a township for damages sustained by reason of a defective bridge, culvert or highway, notice to the township trustee of the defect for at least five days prior to the time the damage was sustained is essential to a recovery, and it has been held that nothing less than actual personal notice to the officer is sufficient (Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449).
It appears that after appellant had offered his testimony he asked the court for leave to amend his plead
The filing of amendatory pleadings rests largely in the discretion of the trial court, and upon the record as it is presented here it can not be said that the court abused its discretion.
The judgment is affirmed.