59 Kan. 86 | Kan. | 1898
On July 18, 1894, A. L. Vickers was killed by the falling of a defective bridge, which had just been constructed in Cloud County, and his widow
The answer of the defendants was a general denial and a charge of contributory negligence. The trial court ruled that the averments of the plaintiff did not warrant a recovery against the defendants, refused to hear any testimony, and directed a verdict in favor of the defendants.
According to the allegations of the petition and the offer of proof thereunder, the fall of the bridge and the resulting injury and death of Vickers were due to the wrongful acts and omissions of the defendants. The widow is, therefore, entitled to maintain an action against them and to recover for the death of her husband, providing he could have maintained an action against them for the injury if he had lived. Civil Code, § 422. This Code provision is remedial and prospective, and is as applicable to statutory liabilities created after its enactment as to those created or existing before that time. Is there a liability against the defendants, or any of them?
It is contended on behalf of the plaintiff that there is an express provision creating a liability against the County. In 1887 the Legislature enacted the following provision:
“Any person'who shall, without contributing negligence on his part, sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located,*89 as hereafter provided; that is to sav, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained ; and in other cases such recovery may be from the township, when the trustee of such township shall have had like notice of such defect.” Laws of 1887, ch. 237; Gen. Stat. 1889, ¶ 7134; 1897, ch. 42, §48.
It is said that the statute was held not to be applicable because Vickers was not using the bridge for traveling purposes, but was under it, at the time it fell and killed him. It will be observed that no such limitation is expressed in the statute. Its language is broad and inclusive, making counties and townships liable to “ any person who shall, without contributing negligence on his part, sustain damages by reason of any defective bridge,” etc. The right of action is, therefore, not restricted to any particular class of persons, nor to the position which the person may occupy upon the bridge, culvert or highway at the time of the injury. No reason is seen why a person who is injured while rightfully under the bridge is not as much entitled to recover as one who is injured while passing over it. As the bridge is in, and a part of, the public highway, a person may rightfully pass under it; and the only restriction imposed by statute in that respect is, that the person injured shall be without contributory negligence. It is true, that before the enactment of the law quoted there was no liability against a county or township for injuries resulting from defective bridges, culverts or highways ; but this immunity from liability has been completely withdrawn, and these public corporations are to that extent on the same plane with private corporations
It is next argued that the act refers only to completed structures and highways ; and then it is further contended that the bridge in question had not been accepted, but was still in course of construction, and therefore that persons injured must look to the contractor for a remedy or to those who directly inflicted the injury. It may be conceded that an incomplete bridge, wholly in charge of an independent contractor, and which is not wholly or partially in the use of the public or under the control of the public officers, is not within the statute. To come within the statute it must have been such a structure as constitutes a bridge, but it is not required that it should be a finished or perfect structure. The claim that the statute applies only to bridges, culverts or highways once complete, but which have become out of repair, and which the county or township has failed to repair after due notice, was denied in the recent case of Reading Twp. v. Telfer, 57 Kan. 798; 48 Pac. Rep. 134. In that case, the same claim was made as to a highway as was made here with respect to a bridge, and to constitute a defective highway within the meaning of the statute, it was said that it was not necessary 'that it should be first improved and put in condition for travel, and then allowed to become defective through lack of repair. In pronouncing the decision, Chief Justice Doster remarked that the statute contains no such exceptions, and besides, “ the statute which gives the right of action in question is a remedial one, and
It is suggested that the individual officers are not necessary or proper parties defendant; but this question is not raised by the ruling of the District Court, and requires no consideration. The only question before us is, whether the trial court rightfully excluded all testimony, and upon that, we conclude that 'a cause of action was stated by the plaintiff and that she was entitled to introduce evidence.
The judgment of the District Court will be reversed and the cause remanded for a new trial.