Finley v. Board of County Commissioners

92 P. 1113, 77 Kan. 835, 1907 Kan. LEXIS 190

• Court: Supreme Court of Kansas
• Decided: December 7, 1907
• Docket: No. 15,250
• Status: Published

Opinion

Per Curiam:

The plaintiff in error brought an action against the board of county commissioners of Labette county, in the district court of that county, to recover damages for the death of her husband, which resulted from the falling of a defective bridge which had been built and maintained by the county. Upon the completion of the plaintiff’s evidence the defendant demurred thereto. The demurrer was sustained and judgment for costs was rendered against the plaintiff. Of this ruling and judgment she complains.

It is alleged in the petition and established' by unconflicting evidence “that the wire rope or truss sustaining the said bridge, by reason of its rotten condition and its insufficient size and weight, parted and gave way and was directly responsible for said fall and injury.”

It is admitted of record that the plaintiff’s evidence was sufficient to compel the overruling of the demurrer provided the evidence of notice to the chairman of the board of county commissioners of the defect which caused the injury is sufficient: It is also agreed thai the testimony of one C. W. Studley was the only evidence of such notice. ' Studley testified, in substance,' that he was the township overseer, and that the bridge in question consisted of an approach extending from the bank of the stream to an abutment, upon which, and on an abutment on the opposite side of the stream, •rested the main, or iron, bridge, which was also supported by the wire rope, or truss; that he told the chairman that the bridge was unsafe and went with him to examine it; that he told the chairman the approach was unsafe and said he would have it fixed as soon as he could when the water went down-; that he did not consider the main, or iron, bridge unsafe and did not talk to the chairman about it.

It nowhere appears that the chairman examined the wire rope or had any notice whatever of any defect in it. On the authority of Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449, the ruling and judgment must' he° sustained.