45 P.2d 844 | Kan. | 1935
The opinion of the court was delivered by
Suit was brought by Maxine Potter against the city of Coffeyville, alleging that on the 19th day of October, 1934, the city maintained a waterworks system in its proprietary capacity and was receiving profits therefrom, and it was alleged that at a certain place in the city defendant placed a meter in the parkway for the purpose of registering water passing through the same; that the defendant maintained the meter in a certain tile which is located three feet north of the sidewalk and three inches west of the concrete driveway across the parkway. That on the 19th of October, 1934, the flange of the tile was then and for several months prior thereto had been broken and the same was jagged and sharp; that the cement covering did not set firmly on the same and by stepping on the slab anyone would be precipitated into the tile and against the jagged and sharp edges of the same.
Plaintiff further alleged that on the same day Maxine Potter, a junior in the high school, had occasion to pass along the sidewalk and concrete driveway in, front of the property, and stepped upon the concrete lid covering the meter, and that the lid tilted and gave way, causing her to fall and strike the jagged edge of the tile, causing a serious and dangerous wound; that plaintiff was removed to the office of Dr. A. A. Krugg, where several stitches were taken and the wound was dressed, and thereafter plaintiff was confined to her bed for a period of approximately four weeks; that scar tissue formed upon her knee, causing the knee to be stiff, retarding the action of the knee, and causing an unsightly wound. Plaintiff alleged the injury was occasioned by the negligence and carelessness of the officers, agents and employees of the defendant, the city of Coffey-ville, in that they permitted the cement covering for the tile to remain in a dangerous condition, and damages in the sum of $5,000 were asked for the injury.
When the attorney for the city filed a motion to make the petition more definite and certain he was notified of the time the motion would be heard and did not appear. These facts are shown by the journal entry denying the motion, and the motion to make more definite and certain was thus virtually abandoned, and that fact alone was sufficient to preclude the city from getting any subsequent benefit of the motion.
As the question is raised the defendant admitted at the hearing that the cause of action was properly stated in the petition, but he says that if the motion had been properly interpreted the demurrer must have been sustained by the court. By reference to an early case, Stewart v. Balderston, 10 Kan. 131, there is some language
There is no room here for the application of the doctrine of the Balderston case. If the facts were so pleaded that the demurrer should be overruled- — -that is, that the grounds stated, standing alone, stated a cause of action — it is useless to add to them facts which defendant assumed might be pleaded and thus change the cause of action and make it subject to a demurrer by alleging that it was conceded to be a case of contributory negligence. In that case, the facts not being well pleaded, the demurrer should have been sustained. But here the petition of plaintiff was conceded to be good, and therefore the facts were sufficient to withstand a demurrer, and hence it was properly overruled.
The judgment is affirmed.