95 Kan. 654 | Kan. | 1915
The opinion of the court was delivered by
Plaintiff sued the city claiming that she had been injured by falling on a defective sidewalk. The court sustained a demurrer to her evidence and gave judgment in favor of the city. Plaintiff appeals.
A number of reasons are advanced by the defendant in support of the ruling upon the demurrer, but from our view only one of them warrants extended comment.
The city contended and the court held that in order to comply with the terms of the statute the notice had to be filed with the city clerk at his office, and that leaving it with him at his residence after the usual office hours was not sufficient. The statute in express terms requires the statement to be filed “with the city clerk.” Usually, of course, when any paper is required to be filed with an officer it is contemplated that it will be presented to him at his office, if he has an office, and during business hours; but we think it would be enforcing a very technical construction, of the statute, considering the purpose of its enactment, to hold that where, as in this case, the notice is left with the clerk at his residence within the required time and he accepts it, it is not in fact filed with him merely because he fails to take it to his office and to mark it as filed until the next day. In this case the clerk seems to have given effect to the intention of the plaintiff and evidently understood that the paper was left with him in his official capacity for he deposited it among the files in his office the first thing in the morning. Of course, the fact that he stamped it filed on the 20th would not defeat plaintiff’s right to rely upon his acceptance of the custody of it the day before.
It is seriously argued, however, that the city had no opportunity to investigate the circumstances of plain
Every other reason urged by the defendant for sustaining the demurrer involves a question of fact upon which there was some evidence for the jury to pass. The cross-examination of plaintiff’s witnesses afforded defendant some ground upon which to base an argument to a jury, but the court could not decide the conflict in the testimony on a demurrer. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.) In that case the plaintiff on cross-examination contradicted her testimony given in chief and the court sustained a demurrer, but the judgment was réversed and it was said in the syllabus:
“It is error for a trial court to sustain a demurrer to the evidence because there is a conflict between plaintiff’s testimony .in chief and that given upon cross-examination. The court cannot weigh the evidencé. If there is any evidence whatever to support plaintiff’s case it must be left to the jury to decide its weight and credibility.”
It is argued that the demurrer was properly sustained because there was no evidence to show that the city had notice of the defect in the sidewalk. One witness for the plaintiff testified that the depression in the sidewalk had existed for three months previous to the injury; another testified that he knew of it being there at least two weeks prior to the accident. This was evidence to go to the jury upon the question of constructive notice. The city contends that the depression in the sidewalk did not amount to a defect; that plaintiff on cross-examination admitted that she fell
The judgment is reversed and a new trial ordered.