15 Kan. 81 | Kan. | 1875
The opinion of the court was delivered by
This was an action brought by Martin Smith against the city of Leavenworth, to recover for injuries received by the plaintiff by reason of a defective sidewalk in said city. The facts of the case, as shown by the special verdict of the jury, are as follows:
First: The defendant is a municipal corporation, a city of the first class, duly organized and existing under the laws of the state of Kansas, and as such has the charge and control of the public streets within the limits of the city.
Second: Shawnee street is a public street of said corporation, graded, curbed, guttered, macadamized, and sidewalked ten feet in width, by said corporation.
Third: On the north side of said street was erected in 1868 a building on lot 9, in block 50. In front of said building was a cellar-way, which extended into the cellar by steps, six feet deep.
Fourth: From the erection of-said building until the second day of May 1873, said cellar-way was unprotected, and several citizens fell therein.
Fifth: On the evening of the 3d of May 1873, between the hours of seven and eight o’clock, the plaintiff, in going from his residence to his place of business, using ordinary care, and without any fault on his part, accidentally fell into said cellar-way.
Sixth: On the 2d day of May 1873, John Kirch, who was a tenant in possession of said building, caused a trap-door to be put over said cellar-way. On the 3d day of May said
Seventh: The corporation defendant had full notice of the existence of said opening or cellar-way from the time of the erection of said building, and of the condition it was in. But the defendant did not know that said trap-door had been put down by Kirch.
Eighth: From said fall the plaintiff sustained a fracture of his left arm, near the wrist, whereby he was confined to his house for three weeks, and was rendered unfit to attend to his business for over three months, and had to employ assistance to attend to his business while so disabled, and had to employ physicians, and incur expenditures for medical attention.
Ninth: We, the jury, find, if the above facts are sustained by the court, the plaintiff is entitled to recover $650 damages.
The only question involved in this case, as we think, is, whether the plaintiff ought to recover upon the foregoing facts. It is true, the plaintiff suggests some other matters, but we hardly suppose he expects a reversal of the judgment below on account of them. For instance, he asked the court below to instruct the jury to make the following additional findings of fact, to-wit: “ That the defendant was guilty of negligence in permitting said opening to be made, and to remain in said sidewalk ;” “ That the defendant was guilty of negligence in omitting to have said opening properly guarded;” “That said opening never had been and was not at the time of the injury to said plaintiff properly and sufficiently guarded.” The court refused. He assigned this refusal for error. He mentions the same in his
We now return to the real question in the case, which is, which party should recover upon the facts found by the jury, the plaintiff, or the defendant? This is a difficult question to solve. It seems to be new. There is no case to be found in the books precisely like it; and different minds might reach different conclusions with reference thereto. We suppose however that the following propositions will be conceded to be good law: lst.-The fee of all streets, including that portion of the same on which the sidewalk is constructed, in any city in Kansas, is in the county in which such city is situated, for the use and benefit of the public. (Randal v. Elder, 12 Kas. 257, 261, and cases there cited.) 2d.-The only legiti
Wé therefore conclude, that, where a city permits a cellar-way to.be constructed in the sidewalk of one of its principal streets, which cellar-way is not guarded in any manner except by a trap-door, and is dangerous for persons traveling on said sidewalk when said trap-door is not closed, and where said city permits the person occupying the adjoining lot, and those acting under him, to open and close said trap-door at their option, the city is liable for any injury that occurs by reason
The judgment of the court below will be reversed, and cause remanded, with the order that the court below render judgment on the special verdict of the jury in favor of the plaintiff and against the defendant, for $650 damages, and costs.