This is аn action for personal injuries received by Mrs. Hunter on the sixteenth day of March, 1889. At the close of plaintiffs’ evidence the court directed a nonsuit, and plaintiffs aрpeal.
In-1886 defendant Weston filed in the recorder’s office of J ackson county a plat of Weston’s addition to the City of Kansas. The land platted was bounded on the west by Clairmount street, on the south by Pacific street, on thе east by land not laid off into town lots, and on the north by what is known as “Hurk’s Resurvey,” the latter extending north to Fifth street, that being the first street it reached. On the plat of Weston’s addition,' an аlley fourteen feet wide is marked, extending from Pacific street to the north boundary of that addition, and, on the east line of Hurk’s Resurvey, an alley six feet wide is marked on the рlat thereof, extending to Fifth street. This alley is equidistant from Clairmount street and Highland avenue, the land between the alley and the avenue being unplatted and the avenue bеing about fifty feet higher than Clairmount street. The lots in Weston addition front twenty-five feet each on Clgirmount street, running back to the alley over one hundred feet. Weston, still being the owner of these lots, opened a quarry on them, beginning on Clairmount street, and at the time Mrs.
On “Iiurk’s Resurvey” immediately adjoining to Westоn’s addition was situated a dwelling-house, apart of which plaintiffs occupied, the other part being occupied by a man by the name of Cox. This house could » not be аpproached from the west and south on account of the quarry excavation, nor from the north on account of a bluff on the south side' of Fifth street, where the аlley terminated; but it could be reached from the rear, by going along Highland avenue and thence across the unplatted land, entering the alley at the north end of the wire fence, where there was an opening in a hedge fence. Cox owned a two-horse wagon which he left, when not in use, sometimes on the east side of the hedge аnd wire fences, and sometimes in the alley. He did not use the wagon on the sixteenth day of March, 1889, and had left it standing in the alley some eight feet south from the north end-of the wire fence, with the tongue in the fence. On that day, plaintiffs’ little girl, Clara, about five years old, another little girl named Ettie Prill, about four years old and a little boy named Leo Prill, about six yеars old, were at this wagon playing. The two girls were in the wagon and the boy was playing with the tongue, swaying it to and fro. Mrs. Hunter, who was at work about her house,
The plaintiffs also read in evidence the following sections of the ordinances of Kansas City:
“Sec. 1011. All dangerous holes, depressions, excavations or other dangerous places within the city that are below the natural or artificial grades of the adjоining streets, avenues or alleys, shall be filled up, covered over, or properly inclosed, or protected, with railings, fences or walls, so as to render the samе reasonably safe to persons and property from falling therein.”
“Sec. 1036. No person shall dig or cause to be dug in, near or adjoining any street, avenue, sidewalk, alley, or other public place, any vault, area, coal hole, basement, cellar or opening without covering the same, and securing the grading or covеring thereof in such a manner as is provided by ordinance, to prevent persons from falling therein; nor shall any person keep, maintain or leave open any cellar dоor, etc., area, coal hole in, near or adjoining any sidewalk, alley, highway or other public place. Nor shall any person suffer or allow any such cellar door, etc., in front of, or alongside of any house, building, lot or premises owned*183 or occupied by Mm, to remain open in an insecure cóndition, or out of repair.” P. 84.
“Sec. 1046. No person shall place or leave, or cause to be placed or left, any hack, carriage, wagon, cart, dray, sleigh, sled or other vehicle, without some beast of burden shall be properly harnessed thereto, in or upon any street, avenue, alley, sidewalk, public square, public walk or dock.”
The alley in quеstion had not been improved in ' any respect, and there was nothing to distinguish it from the adjoining open space, there being no fence between it and Clairmount street.
Plаintiffs predicate their right to recovery against defendant Weston on his negligence in maintaining the unprotected quarry so near the alley as to render it dangerous, and against the city on its negligence in permitting the unhitched wagon to remain in the alley, and in failing ■ to provide a barrier between the alley and quarry.
The controlling question hеre presented hinges, therefore, on the duty of defendants in respect of the alley in question. If this alley does not come within the purview of the ordinances of the сity read in evidence, then the defendants owed no duty to plaintiffs in respect of it as such, and plaintiffs have no cause of action for the injuries complained оf. That the alley existed on paper only, is beyond dispute, and that it had never been opened for public travel, is equally clear. It was not even a ml cle sac, being closed at both ends. A wire fence was constructed in it, beginning six feet, three inches from its west line at the north end of Weston’s addition, and running southwardly to within two feet of that line at the intersection of the alley and the quarry excavation.
Two perpendicular walls prevented an approach to the alley from either end. It was at the time, as nature
“A city is nоt necessarily required to open or put all its streets in a condition for public travel. ” Walker v. Kansas City,
This alley, which was merely designatеd on paper, having no existence de facto, and never having been opened for public use, defendants owed plaintiffs no duty in respect to it as an alley under the said ordinances, and they are not liable in this case.