59 Kan. 568 | Kan. | 1898
This action was brought against the township of Emporia, in Lyon County, on behalf of Mary E. Dougherty, by L. S.'McFarland, as her next friend, to recover damages resulting from the death of Reuben Dougherty, her father. The evidence offered by the plaintiff shows that on the tenth of January, 1894, the deceased was driving a team,
There was evidence showing that the township trustee was familiar with the road, and knew of the encroachments of the river upon it; and that he was
It is contended that the evidence shows that the trustee knew the dangerous condition of the road at that particular place as well as any one else, and that formal notice was therefore unnecessary. The evidence in the case shows that the roadway in that vicinity was level and passable for the entire width between the fence mentioned and other fences and hedges on the east side of it. The traveled track was at least six feet from the brink of the river bank. Most witnesses place it considerably farther away. No danger was to be apprehended if the traveled way was followed. There was ample space for teams to pass. ■ There was the barrier of the fence to warn passers-by away from the river. It is well settled that the public is not bound to make the whole width of a highway passable.
In most cases, and under ordinary circumstances, it would seem that such a fence would be an ample warning to keep persons driving along the road from running off the bank. It would seem that horses under ordinary circumstances would be checked by it until they would see and avoid the danger. What impelled Dougherty’s horses to rush over and break down the fence is a mystery wholly unexplained by the evidence. The township trustee was not bound to guard against all possible contingencies, all improbable conduct, but only against such dangers as he was notified of. There would seem to be in reason a distinction between defects in the traveled way •itself, which must be encountered by persons traveling over it, and those dangers which arise merely from the proximity of cuts, washouts and pitfalls. Township authorities may well be held to much more strict performance of their duties in maintaining the safety of the traveled track than in providing against the more remote contingency of dangers to be encountered by those who leave it and go into unsafe places not prepared or intended for travel. The testimony in this case fails to show that the attention of the township trustee was challenged to the insuffi
Complaint is made of the ruling of the court on the ■cross-examination of Harvey Wi’ight. The direct examination was for the purpose of showing his opportunity for knowing the condition of the road at the point under consideration, and from this the evident purpose was to draw the inference that he had such knowledge as his opportunities for obtaining it would afford. The cross-examination was for the purpose of showing, not by inferexxce, but by direct statemexit, just what he did know about it. This is just exactly what cross-examination is for, to develop more fully and definitely the truth of the matter inquired about.
Complaint is made of the ruling of the court in excluding testimony with reference to the condition of the fence at different times prior to the injury. The matter was very fully examined into and no error was committed in this respect.
The judgment of the court is affirmed.