89 Kan. 651 | Kan. | 1913
The opinion of the court was delivered by
The plaintiff sued the city for loss of his wife’s services occasioned by an injury received by falling upon a sidewalk along Seventeenth street. A tent meeting was being held a short distance west of the street, and returning from services there on the evening in question the plaintiff’s wife, in coming from the street line across the parking to the sidewalk, which was twelve to eighteen inches lower than the parking, fell thereon and was injured. The plaintiff recovered and the city appeals and presents the question whether the city owed any duty to the person injured.
It appears that before laying the walk it was necessary to make the depression in order to bring it to grade, and the real question is whether or not the city was liable for failure to guard or protect the place. A park-way of five feet was left between the west line of the street and the sidewalk. The walk had been laid a month or six weeks and the tent services had been held at least nine days when the injury was received. The plaintiff alleged that along the side of the walk weeds had been allowed to grow up and remain, and at the time so concealed the condition and lay of the ground and walk, there being no lights, guard rails, barriers or danger signals, that his wife was caused to fall. The wife testified:
“There was weeds there, had been cut — it seems that the tops had been cut off, but they were almost knee high, struck me along about here, I can remember along about there (indicating), and the dirt and the weeds seemed just to give way under my left foot and let me down on the sidewalk.”
Whether the term point was intended to mean where
‘ Another witness said:
“In coming from the tent to the sidewalk we passed through where the weeds had been cut off, but they were cut high; . . . The weeds were cut down to the sidewalk — that is, the tops were just 'simply whacked off; the pathway into the tent from the street was just simply cutting the weeds, there was no path.”
The verdict then, is supported by proof that a route from the tent to the sidewalk over .the five feet of parking had been marked by cutting the weeds, and was used by many persons and had been for nine days or more, and that where this route entered the sidewalk there was a perpendicular drop of twelve to eighteen inches, the place not being guarded in any way.
The city contends that it had a right to lay the walk on the grade of the street and that it was under no more obligation to protect the west line of the walk than' the west line of the street, and owed no duty to guard or barricade for the benefit of persons coming from private property to the sidewalk. Authorities are cited to the effect that a city need not provide means of access from private property to its streets, and Mulvane v. City of South Topeka, 45 Kan. 45, 25 Pac. 217, is referred to as furnishing a similar rule in this state. It was therein decided that it is not the duty of a city to provide means of access from private property to its streets, nor liable for failure to guard its streets from approach at points where such approach is
The case of Langan v. City of Atchison, 35 Kan. 318, 11 Pac. 38, involved this situation: A billboard negligently and imperfectly constructed on private property and partly supported by studding or uprights nailed to the sidewalk, and being so near to and adjoining the sidewalk as to be dangerously contiguous, was blown down by a strong wind, injuring the plaintiff. The city was held liable. The court said (p. 323) that the city owed the public the duty of keeping its streets and sidewalks in a safe condition for use in the usual mode by travelers and was liable for injuries resulting from the neglect to perform such duties. Certaiji provisions of the statute were quoted and it was said to be the duty of the corporate authorities to remove or abate any nuisance from the streets or sidewalks, and that under their power to remove nuisances and regulate structures projecting upon or adjoining the street or sidewalk they were bound to protect the walk in question from the imperfectly constructed and insecure billboard. It was said:
“We do not think it is very material whether the billboard was so close to and adjoining the sidewalk as to be dangerously contiguous thereto, or was actually supported by braces or uprights resting upon the south edge of the walk. The liability of the city would be the same in either case.” (p. 324.)
Bigelow, C. J., in Burnham v. City of Boston, 92 Mass. 290, in holding the city liable to one who fell into
“Certainly it can not be said that it is per se negligence for a person to enter from adjoining houses .or lands on a defective and dangerous part of a way, who has no knowledge of the defect or want of repair, nor any notice that it had been closed against public travel by barriers erected in another place to prevent the use of the way by those coming upon it either in the line of direct travel or from intersecting streets. Nor can it be maintained that a city or town would in all cases fulfill the duty incumbent upon it by law by merely-placing barriers across a street or way to protect travelers from injury by an existing defect or want of repair, without adopting any measure to guard against accident to those who might have occasion lawfully to come onto the dangerous portion of the way from private lands adjoining and lying within the limits which were closed against travelers approaching in other directions. . . . Nor is there any positive rule of law which requires a person to enter on a highway in any particular manner or at any fixed place, or which prescribes the exact mode in which he shall travel upon it. The right of a traveler to use it, and the duty of a city or town to protect him from danger and accidents, are regulated and measured by the same standards.” (pp. 292, 293.)
Bunchi v. Edenton, 90 N. Car. 431, involved the liability of a town to one who had fallen into a cellar excavation on a lot adjoining the street. It was held to be its duty to keep its streets -and sidewalks in proper repair, which was said to imply:
“That all bridges, dangerous pits, embankments, dangerous walls and the like, perilous places and things very near and adjoining streets, shall be guarded against' by proper railings and barriers.
“Positive nuisances on or near streets should be forbidden under proper penalties, and, when they exist, should be abated.” (p. 434.)
In response to the argument that the excavation was
“This defence is not tenable. It was immediately along the side of the street and rendered it precipitous and dangerous. . . . ■ The side of the street is a material part of it, and must be kept free from danger, however the same may arise, as well as other portions of the street. Pits and other dangerous places immediately adjoining it and near to it make it perilous, and such places are nuisances. When these are permitted to exist and the streets are not properly protected against them, the latter'are not in reasonable repair.” (p. 435.)
A very similar situation was considered in Clark, By, &c. v. City of Richmond, 83 Va. 355, 5 S. E. 369. The court said:
“And it is equally well settled that where the corporation permits an excavation to remain unfenced or without proper guards, in such close proximity to the highway as that one rightfully using it.may without fault on his 'part, but as the result of an unintentional deviation or an accidental mistake, sustain injury by falling into such excavation, such corporation or city will be liable.” (p. 358.)
It was said, however, that to render the city .liable the excavation must be so near the highway that one false step might cause the injury, and that there would be no liability if the party must become an intruder or trespasser upon the premises of another. The same court in Orme and Wife v. City of Richmond, 79 Va. 86, had held the city liable in a case wherein the injury occurred by falling from an old, well-established and constantly used pass way leading into the street over an adjoining lot, over an eight-foot precipice left unguarded in lowering the grade of the street. In Drew v. Sutton, 55 Vt. 586, a town was held liable for an injury occurring by reason of an unguarded defect six inches outside of the highway. Kansas City was required to respond in damages to one injured by a fall
“If the sidewalks outside of the limits of the street were dangerous, upon the facts in this case, because out of repair, I think the street itself may be said under the same facts to have been in a dangerous condition and that the city was liable, so far as this question goes, for injury arising therefrom.” (p. 310.)
The reasoning of the court was that while the city had no right to go upon the adjoining land to repair that portion of the walk, it was still its duty to make its own part reasonably safe, “either by the erection of a guard or railing along the true limits of the street, or in some other way.” (p. 812.) In Sweet v. City of Poughkeepsie, 89 N. Y. Supp. 618, the city was held liable for failure to guard its highway from a stump standing six inches outside the line. The supreme' court of Oklahoma decided in Oklahoma City v. Meyers, 4 Okla. 686, 46 Pac. 552, that:
“Where a city negligently permits an excavation to be made, in such close proximity to a street as to endanger the traveling public, and a person, without*660 fault, is injured by falling into such excavation, a recovery may be had for such injury.” (Syl, ¶ 2.)
There the excavation was on private property some six feet from the street line. A similar situation was considered, with a similar result, in Town of New Castle v. Grubbs, 171 Ind. 482, 86 N. E. 757.
“While a municipal corporation is generally under no obligation to guard dangerous approaches from private property to its streets, yet it is bound to provide guards or signal lights to prevent persons from receiving injuries in entering a street by a commonly traveled road, although such road is in fact a private way, and has never been laid out as a highway or street’. There is no duty, however, to erect barriers or maintain lights to prevent inj ury to persons entering a street where there is no traveled way éither public or private, and nothing to put the city on notice that such entrance is likely to be attempted.” (28 Cyc. 1384.)
(See, also, 3 Abbott, Municipal Corporations, § 1007; 4 Dillon, Municipal Corporations, 5th ed., §§ 1696,1717; 2 Elliott, Roads and Streets, 3d ed., § 790; 1 Harris, Damages by Corporations, § 103; Williams, Municipal Liability for Torts, §§94, 114-118; Jones on Negligence of Municipal Corporations, § 83; Morrill on City Negligence, pp. 70, 71.)
These citations are sufficient to support the doctrine that a city must use reasonable care to keep its streets and sidewalks safe for travel, the kind and degree of care and precaution differing with different circumstances and conditions. And, having full power to prevent or abate nuisances, it must use proper care to keep its highways safe although .the peril consist of places or things not upon the street but dangerously near on private property. Indeed by no other rule would the public be safe in using the streets, for persons living or being in a city have the right to traverse its streets and sidewalks without being required to examine them and their surroundings to ascertain whether passage over them is likely to endanger life or
All that we need now to decide, however, and all that we do decide, is that the evidence was sufficient to go to the jury and to support the general finding in favor of the plaintiff, in view of the fact that the walk was some twelve to eighteen inches below the surface of the parking on either side; that it had been thus for several weeks; the street extended five feet west of the sidewalk so that the party was not injured by stepping immediately from private property to the sidewalk; the tent services had continued for such time and with sufficient attendance to warrant the jury in finding that the city ought to have known that from fifteen to a hundred persons were daily using a route from the tent east to the sidewalk and that they were likely to be injured unless the place was guarded in some way.
The judgment is affirmed.