*402 The opinion of the court was delivered by
This is an appeal from an order of the trial court overruling a demurrer by the appellant city to the amended petition of the apрellee in an action to recover damages for injuries sustained by her when she stepped off a sidewalk and curbing into a defect in the guttеr adjacent to the curbing.
A motion to make portions of the original petition definite and certain and to strike other allegations therеof was overruled in part and sustained in part.
In compliance with the ruling of the court, appellee filed an amended petition (hereafter called petition) setting forth formal parts which were followed by allegations pertinent hereto and these, briefly summarized, are thаt about 8:10 p. m. on September 16, 1954, appellee stepped from the curb onto the concrete apron which lies between the сurb and the brick pavement in the first block on North Broadway in Wichita. We pause to explain here that the concrete apron is what is commonly termed the gutter. The sidewalk, curbing and gutter were concrete and the street proper was paved with brick.
Further summarizing the petition, appellee stepped into an irregular depression which was three and one half inches deep and three feet in diameter; this depression had existed for sufficient time that appellant’s agents and employees knew or should have known thereof for a period of time in excess of that required to make repair; as a consequence of stepping into the depression, appellee fеll and sustained injuries.
Further allegations reflect that congested traffic and parking conditions existed at the location which caused pеdestrians ordinarily and customarily to travel over the portion where the depression was situated because it was the only course available to appellee and other pedestrians desiring to leave or enter automobiles stopped for that purpose in the street adjacent to the automobiles parked at the curb. These facts and those previously stated were, or should have been, known by appellant’s agents and employees. It was nighttime, the defect was in deep shadow, and appellant had not placed any lantern, barricade, flag or other warning device advising of the defect or impending danger to persons who might step therein.
A general demurrer was filed against the petition which the trial *403 court overruled and appellant filed this appeal. Appellant’s argument is focused on the suffiсiency of that part of the petition just summarized and we will limit our consideration thereto.
Appellant stresses the point that the three and one half inch depression involved was not such an actionable defect as to require appellant to respond in damages to а person who might step therein. There might be merit to this contention if that were the only allegation of the petition but such is not the case as сan be seen from the summarized portion above set out. The petition contained allegations of ordinary and customary use by pedestrians being loaded or discharged from temporarily parked vehicles stopped in the street and adjacent to automobiles pаrked at the curb; it alleged that darkness and deep shadows concealed the defect, and in addition alleged other facts, circumstаnces and conditions which were all within the actual or constructive knowledge of appellant’s servants and employees.
Whether аppellee’s evidence will support the contentions of her petition was not before the trial court nor is it before us on this apрeal. Only the allegations of the petition are under consideration but one allegation cannot be isolated — all of them must recеive attention — and if they state a cause of action, then the petition is sufficient and the demurrer has to be overruled. This is not a new or novеl principle but rather is a well-established rule of law and it is not necessary to cite our numerous authorities in support thereof.
Appellant’s position is well taken in view of the authorities cited to the effect that no general duty rests on a city to respond in damages for failure tо repair a slight defect or even in a case where the defect is conceded to be unsafe and actionable unless coupled therewith is the fact that the city has had actual or constructive notice thereof, and in addition after such notice and before thе occurrence of the injury a reasonable time has elapsed in which to repair such defect.
(Blankenship v. Kansas City,
There are conceivably three classes of defects or imperfеctions which have been treated by this court. The first group includes those of such slight character that, as a matter of law, they are not actionable; the second group goes to the other extreme where the imperfections are so dangerous that they are conceded by every
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one to be actionable. Between these two extremes are those which may be ii\ one or the other of the grouрs mentioned. As we have so often said heretofore, minds of men may differ as to what category will control and the determination of that question is one for the jury and not for this court. This brings us to the proposition that all the facts and circumstances attending a particular situation must be takеn into account and each case must depend thereon and be determined thereby.
(Taggart v. Kansas City,
Another question raised by appellant is that it cоuld not be anticipated that pedestrians would traverse this particular portion of the curb and gutter and it cites
Smith v. City of Emporia,
"... a city is not held to the samе degree of care in maintaining in a reasonably safe condition the portion of a street commonly used for vehicular traffic as fоr sidewalks, crosswalks and other parts of the street where it is to he anticipated pedestrians will go.” (Our emphasis.)
While the facts in the Smith case were dissimilar from those before us, the rule of law stated therеin is applicable here. There can be no doubt that the allegations of this petition show not only that this curb and gutter were ordinarily and custоmarily traveled by pedestrians but that appellant’s agents and employees had actual or constructive knowledge thereof and thаt more than sufficient time to repair the defect had expired before appellee’s injuries occurred.
Many authorities were cited by appellant but they involved parkings, and parkways consisting of sod, sand, gravel and other construction. Those cases are distinguishable frоm the one here on appeal.
We find no error in the order of the trial court overruling the demurrer in this case because the petition did properly state facts sufficient to constitute a cause of action notwithstanding the previous motions.
The judgment is affirmed.