Dunfee v. City of Iola

139 P. 1029, 92 Kan. 121, 1914 Kan. LEXIS 181

• Court: Supreme Court of Kansas
• Decided: April 11, 1914
• Docket: No. 18,775
• Status: Published

Opinion

Per Curiam:

The plaintiff was seriously injured by a fall on a sidewalk. She alleged negligence against the city and recovered a small judgment, from which the city has appealed.

The defect in the sidewalk consisted in a gas stop box. which stood about an inch and a quarter above the surface of the walk. It had a cover or top projecting from it which caught the toe of plaintiff’s shoe and caused, her to fall. The petition stated a cause of action and was not subject to demurrer. The plaintiff testified that she had been over the walk a number of times and had seen the stop box, but had not paid particular attention to it. The jury by their general verdict found that she was not guilty of contributory negligence. The. mere fact that she had seen the obstruction before did not require her to be constantly on the lookout for it.. The demurrer to the evidence was rightly overruled.. All the contentions raised by the defendant have been, answered in previous decisions, including the case of Spencer v. Kansas City, post, p. 161. It has been repeatedly held that it is not contributory negligence-per se for one to. walk upon a sidewalk that he knows is defective. All that is required is that he must exercise such care as an ordinarily prudent man would under similar circumstances. (Garnett v. Smith, 72 Kan. 664, 83 Pac. 615; Smith v. City of Rosedale, 83 Kan. 813, 112 Pac. 626; McCoy v. City of Wichita, 86 Kan. 943, 122 Pac. 894.)

The judgment is affirmed.