No. 13,379 | Kan. | Dec 12, 1903
The opinion of the court was delivered by
Frank Holitza and his wife were injured by reason of an unprotected excavation in one of the much-traveled streets in Kansas City, and he brought this action to. recover the damages so sustained. After the plaintiff's testimony was received, the court, on a demurrer, held the evidence to be insufficient to establish a cause of action, the insuffi-ciencybeing the lack of notice to the city of the defect in the street. The case comes to us on a record wherein the following facts are recited :
“There was no evidence to show that the defendant city permitted, or had anything to do with, the making or maintaining of the excavation mentioned in the street, but there was evidence as to all other matters sufficient to entitle the case to go to the jury, unless it was upon the question of notice to the city of the defect, and as to that question there was evidence showing that one Dean, who was building a house on the north side of, and fronting, Osage avenue, in the said city of Kansas Oity, Kan., the same being one of the most frequently traveled streets in the city, em
“And the evidence also tended to show that on the evening of Saturday, August 10, 1901, the plaintiff, while driving with his wife along and upon Osage avenue, at fifteen minutes before nine p. m., and at the time when there was no light at the said excavation, drove into said excavation, and thereby injuries were sustained by himself and wife ; and there was no other evidence of notice to the city of the presence of said excavation, or of its unguarded condition, save and except as herein stated.”
It is conceded that it is the duty of the city to keep its streets in a reasonably safe condition for public travel, both day and night. Whether this duty has been performed or not is ordinarily a question of fact for the jury. The care required of the city necessarily depends upon a number of circumstances and considerations, including the population of the place, whether great or sparse, and also whether the streets are much or little traveled, and cases are rare in which the court
■ The excavation in the street was a defect involving liability, unless it was reasonably ■ well guarded, or unless the city did not have sufficient notice of the defect to enable it to furnish protection. Under the facts stated, every element essential to a recovery against the city was shown, provided it had sufficient notice of the defect to make it responsible. It is argued that the defect existed for so short a time that the court was warranted in holding the notice to be insufficient and in arbitrarily taking the case from the jury. The injury was suffered at fifteen minutes before nine o’clock on the night of August 10, and it is said that at that time darkness did not come until about eight o’clock. The claim is therefore made that, as the period in which no danger lights were up was only from forty-five minutes to an hour, notice to the city can in no event be implied.
The defect in the street, however, was not the mere absence of a light, but it was the excavation which had existed for several days, a time sufficient from which to warrant a jury in imputing notice to the city. Besides, such excavations are usually made with the permission of the city, although it does not appear that permission was given in this instance ; but whether made by its own officers or by third persons, the duty still rested upon the city to see that the excavation was properly guarded. It cannot escape responsibility simply because the excavation was made by a third■ person, nor because such person may have assumed the task of guarding it.
Notice is not readily imputed where the defect is of short duration, as the city and its officers are only held to the exercise of reasonable care and diligence. But
The judgment will be reversed and the cause remanded for further proceedings.