The opinion of the court was delivered by
Horton, C. J.:
1- prt«ion,nwhen good — wW Upon the trial, the railway company and the city of Winfield objected to the introduction of any evidence under the petition, upon the ground that it failed to state a cause of action against the defendants, or either of them. No demurrer was filed to the petition, nor was any motion presented to have it made more definite or certain. In the absence of a demurrer and motion, the allegations of a petition will be construed liberally, and, unless there is a total omission to allege some material pae(. wpic}1 jg essential, a petition will he held good. If the facts are all stated, even indefinitely or in form of conclusions, a petition will be regarded [96]*96as sufficient. (Laithe v. McDonald, 7 Kas. 261; Fitzpatrick v. Gebhart, 7 id. 41; Crowther v. Elliott, 7 id. 235; The State v. School District, 34 id. 241.)
It is argued that no notice to the city of Winfield is pleaded. The petition alleges:
“That prior to the 24th day of May, 1888, the railway company had constructed the track of its line of street railway over and along West Ninth avenue in the city of Win-field in such a careless and negligent manner that the same was, on the 24th day of May, 1888, and for a long time before and after that day, a dangerous obstruction to travel along the street ; and that the city of Winfield, on the 24th day of May, 1888, and for a long time before and after that day, negligently and carelessly permitted the railway company to construct and maintain the track of its line of street railway on West Ninth avenue in such a careless and negligent manner as to dangerously obstruct travel on the street. ”
2. Defect in street-notice-liability of city
3. Allegation of notice Where the defect or obstruction in a street of a city is patent or obvious, and has continued so long that notice may be reasonably inferred, or where the defect or obstruction is one which, with reasonable or proper care, should have been ascertamed and remedied, the city is liable for the injuries resulting from such defect or obstruction. (Jansen v. City of Atchison, 16 Kas. 358; Kansas City v. Bradbury, 45 id. 381.
, 4. Harmless error. It is insisted that the court erred in admitting in evidence the opinion of witnesses as to the street car track, at the point of the accident, being dangerous, and ordinance No. 258 of the city of Winfield granting the railway its franchise to lay its tracks in the streets. Under the authority of City of Topeka v. Sherwood, 39 Kas. 690, the opinion evidence was not materially prejudicial. While certain sections b j r 0f ordinance No. 258 have been amended by ordinance No. 300, yet section 3, providing the manner in which the tracks should be laid and maintained by the railroad company, has not been amended or repéaled. The sections amended were not in full force, and, if objection had [97]*97been taken to these sections, the trial court would undoubtedly have rejected them. But the objection was to all the ordinance as incompetent, irrelevant, and immaterial, and was therefore properly overruled. Sections 1, 2 and 3 were material and pertinent to the issues.
At the conclusion of the evidence of plaintiff below the -defendants filed separate demurrers. These were overruled. It is now insisted that the trial court should have sustained these demurrers. The track of the railway company is located near the center of the street, running east and west. There is room for teams -and vehicles to pass and repass on ■each side of the track. At Bridge street the tracks of two railroads, the “Frisco” and Santa Fé, cross the street. East of the railroads the top of the track of the street railway is slightly elevated above the level of the street, sufficient to ■catch the wheels of vehicles when attempting to cross at,almost any angle; and west of the railroad crossings the grade of the street descends, and the street railway track is elevated above the level of the street the full extent of the rails, about four inches; and on the north side of the track the ends of the cross ties are exposed, making it almost impossible to cross the track with vehicles. While driving along the street, east of the railroad crossing, and while crossing the street car track with her team and carriage, with one seat occupied by Mrs. Stone and two other women and a child, the wheel caught in the track and made a rasping or grating noise, which scared the horses, and they started to run. After crossing the railroad tracks, the horses being turned toward the track again, the wheel struck the protruding cross ties and track, upsetting the carriage and throwing the occupants, including Mrs. Stone, out, causing the injuries complained of. Mrs. Stone testified that in going out of town she always crossed the track from the south side to the north before reaching the railroad tracks, because it was the best road. Where she was thrown out of the carriage the rails and ties of the street railway were above the level of the street, and a dangerous obstruction for teams with vehicles.
[98]*98It is urged that there is no liability on the part of the railway company or the city of Winfield for the negligent defect or obstruction of the street, as the runaway team concurred in producing the injuries of Mrs. Stone. This is the rule in Massachusetts, Maine, Wisconsin, and West Virginia; but the contrary is held by the courts of New York, Pennsylvania, Georgia, Missouri, Indiana, Connecticut, New Hampshire, Vermont, and Texas. (Beach, Contrib. Neg., § 245.) Elliott, in his recent work upon Roads and Streets, says:
6. Proximatecause — lia"bility of city.
7. Two causes, producing injury-rule. “According to the weight of authority, the city is liable where a horse takes fright without any negligence on the part of the driver at some object for which the municipality is not responsible, and gets beyond . a i x» i* j • j ° J a the control of his driver, and runs away and comes in contact with some obstruction or defect in the road or street which the city has been negligent in not removing or repairing, if the injuries would not have been sustained but for the obstruction or defect.” pageg 448, 449, and cases cited. (Sherwood v. City of Hamilton, 37 U. C. Q. B. 410; City of Joliet v. Shufelt, 32 N. E. Rep. [Ill.] 969.)
[99]*995. Personal injuries-joint liability. [98]*98We prefer to follow the general weight of authority, and therefore cannot adopt the rule that cities are not liable for injuries to a runaway horse or his owner occasioned by an obstruction or defect in the streets. It is suggested that the city was not required to keep the whole width of Ninth avenue in good condition, and City of Wellington v. Gregson, 31 Kas. 99, is referred to. In that case it was observed: “ Whether in any given case a city can be charged with negligence in failing to improve and render safe for use the entire width of the street, and also whether, when it has put a portion in good condition, it can be charged with negligence on account of posts, stakes, or other obstructions outside of
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Horton, C. J.:
1- prt«ion,nwhen good — wW Upon the trial, the railway company and the city of Winfield objected to the introduction of any evidence under the petition, upon the ground that it failed to state a cause of action against the defendants, or either of them. No demurrer was filed to the petition, nor was any motion presented to have it made more definite or certain. In the absence of a demurrer and motion, the allegations of a petition will be construed liberally, and, unless there is a total omission to allege some material pae(. wpic}1 jg essential, a petition will he held good. If the facts are all stated, even indefinitely or in form of conclusions, a petition will be regarded [96]*96as sufficient. (Laithe v. McDonald, 7 Kas. 261; Fitzpatrick v. Gebhart, 7 id. 41; Crowther v. Elliott, 7 id. 235; The State v. School District, 34 id. 241.)
It is argued that no notice to the city of Winfield is pleaded. The petition alleges:
“That prior to the 24th day of May, 1888, the railway company had constructed the track of its line of street railway over and along West Ninth avenue in the city of Win-field in such a careless and negligent manner that the same was, on the 24th day of May, 1888, and for a long time before and after that day, a dangerous obstruction to travel along the street ; and that the city of Winfield, on the 24th day of May, 1888, and for a long time before and after that day, negligently and carelessly permitted the railway company to construct and maintain the track of its line of street railway on West Ninth avenue in such a careless and negligent manner as to dangerously obstruct travel on the street. ”
2. Defect in street-notice-liability of city
3. Allegation of notice Where the defect or obstruction in a street of a city is patent or obvious, and has continued so long that notice may be reasonably inferred, or where the defect or obstruction is one which, with reasonable or proper care, should have been ascertamed and remedied, the city is liable for the injuries resulting from such defect or obstruction. (Jansen v. City of Atchison, 16 Kas. 358; Kansas City v. Bradbury, 45 id. 381.
, 4. Harmless error. It is insisted that the court erred in admitting in evidence the opinion of witnesses as to the street car track, at the point of the accident, being dangerous, and ordinance No. 258 of the city of Winfield granting the railway its franchise to lay its tracks in the streets. Under the authority of City of Topeka v. Sherwood, 39 Kas. 690, the opinion evidence was not materially prejudicial. While certain sections b j r 0f ordinance No. 258 have been amended by ordinance No. 300, yet section 3, providing the manner in which the tracks should be laid and maintained by the railroad company, has not been amended or repéaled. The sections amended were not in full force, and, if objection had [97]*97been taken to these sections, the trial court would undoubtedly have rejected them. But the objection was to all the ordinance as incompetent, irrelevant, and immaterial, and was therefore properly overruled. Sections 1, 2 and 3 were material and pertinent to the issues.
At the conclusion of the evidence of plaintiff below the -defendants filed separate demurrers. These were overruled. It is now insisted that the trial court should have sustained these demurrers. The track of the railway company is located near the center of the street, running east and west. There is room for teams -and vehicles to pass and repass on ■each side of the track. At Bridge street the tracks of two railroads, the “Frisco” and Santa Fé, cross the street. East of the railroads the top of the track of the street railway is slightly elevated above the level of the street, sufficient to ■catch the wheels of vehicles when attempting to cross at,almost any angle; and west of the railroad crossings the grade of the street descends, and the street railway track is elevated above the level of the street the full extent of the rails, about four inches; and on the north side of the track the ends of the cross ties are exposed, making it almost impossible to cross the track with vehicles. While driving along the street, east of the railroad crossing, and while crossing the street car track with her team and carriage, with one seat occupied by Mrs. Stone and two other women and a child, the wheel caught in the track and made a rasping or grating noise, which scared the horses, and they started to run. After crossing the railroad tracks, the horses being turned toward the track again, the wheel struck the protruding cross ties and track, upsetting the carriage and throwing the occupants, including Mrs. Stone, out, causing the injuries complained of. Mrs. Stone testified that in going out of town she always crossed the track from the south side to the north before reaching the railroad tracks, because it was the best road. Where she was thrown out of the carriage the rails and ties of the street railway were above the level of the street, and a dangerous obstruction for teams with vehicles.
[98]*98It is urged that there is no liability on the part of the railway company or the city of Winfield for the negligent defect or obstruction of the street, as the runaway team concurred in producing the injuries of Mrs. Stone. This is the rule in Massachusetts, Maine, Wisconsin, and West Virginia; but the contrary is held by the courts of New York, Pennsylvania, Georgia, Missouri, Indiana, Connecticut, New Hampshire, Vermont, and Texas. (Beach, Contrib. Neg., § 245.) Elliott, in his recent work upon Roads and Streets, says:
6. Proximatecause — lia"bility of city.
7. Two causes, producing injury-rule. “According to the weight of authority, the city is liable where a horse takes fright without any negligence on the part of the driver at some object for which the municipality is not responsible, and gets beyond . a i x» i* j • j ° J a the control of his driver, and runs away and comes in contact with some obstruction or defect in the road or street which the city has been negligent in not removing or repairing, if the injuries would not have been sustained but for the obstruction or defect.” pageg 448, 449, and cases cited. (Sherwood v. City of Hamilton, 37 U. C. Q. B. 410; City of Joliet v. Shufelt, 32 N. E. Rep. [Ill.] 969.)
[99]*995. Personal injuries-joint liability. [98]*98We prefer to follow the general weight of authority, and therefore cannot adopt the rule that cities are not liable for injuries to a runaway horse or his owner occasioned by an obstruction or defect in the streets. It is suggested that the city was not required to keep the whole width of Ninth avenue in good condition, and City of Wellington v. Gregson, 31 Kas. 99, is referred to. In that case it was observed: “ Whether in any given case a city can be charged with negligence in failing to improve and render safe for use the entire width of the street, and also whether, when it has put a portion in good condition, it can be charged with negligence on account of posts, stakes, or other obstructions outside of the traveled track, are ordinarily questions of fact for the determination of a jury;” but the city of Winfield had opened for public travel all of Ninth avenue, and the street railway in its contract with the city was required to construct its railway [99]*99“in such manner and condition as not to prevent the crossing of the streets or avenues by teams and wagons at any point with safety.” Ninth avenue was one of the principal streets of the city, and had been opened, was the duty of the city to keep it in a reasonably safe condition for both pedestrians and teams. (City of Olathe v. Mizee, 48 Kas. 438.) Whether Mrs. Stone was guilty of contributory negligence in crossing the street railway where and in the manner she did, and whether she was guilty of any negligence connected with the driving of the team or their running away, were questions for the jury not for the court.
It is further insisted that the court erred in refusing to charge the jury in writing. At the conclusion of the evidence, the railway company and the city of Winfield asked the court to give the instructions in writing and separately number them. This request was refused, upon the ground that it was made too late. It appears from the record that it was a rule of the district court of Cowley county that, if either party desired the general instructions to be in writing, the request must be made at or before the time the jury was impaneled, and if the request was not then made, it would not be considered. It appears in this case that the instructions as delivered were taken down by the official stenographer, and by him transcribed, and signed by the judge and delivered to counsel for defendants at the time they commenced their argument, and were also sent out to the jury. It is of great advantage if the request for instructions in writing is made at the commencement of the trial, so that, as the trial progresses, the judge can draw up those portions of his instructions which are applicable to the evidence as successively presented. (Thomp. Char. Jury, § 112, p. 153.) At the time of the decision in Railroad Co. v. Franklin, 23 Kas. 74, the instructions were given when the argument of the case was concluded. This court held that if the request for written instructions was not made until after the argument, the [100]*100request was too late and not available. Valentine, J., speaking for the court, remarked:
8. Oral instructions-no prejudicial error. “If counsel may wait until the close of the argument before making the request, it would necessarily cause great delay in the proceedings of the court, and materially increase costs and expenses. Generally, it would require an adjournment of the court to enable the judge to prepare his written instructions. ” The order of trial was changed by chapter 126, Laws of 1881, so that the general instructions to the jury are now given when the evidence is concluded. (Civil Code, § 275.) Therefore, if counsel may wait until the close of the evidence before making the request, it will generally require an adjournment of the court to enable the judge to prepare instructions; but in this case, whatever view may be taken as to the time it is necessary to make the . . * . request, the court committed no prejudicial error, because both the counsel for the defendants below and the jury were furnished with the instructions in writing in ample time for any beneficial purpose. If either party desires special instructions to be given to the jury, such instructions may be reduced to writing and delivered to the court when the evidence is concluded. This is expressly permitted by the statute. (Civil Code, § 275.)
9. New trial, not granted.
[101]*10110. Cases followed. [100]*100It is further insisted that the trial court committed error in refusing and giving instructions. With a single exception, although the instructions may be criticised, yet 011 account of the findings of the jury and the evidence in the case, we do not think the jury were misled thereby, or that there was anything prejudicial in those given or refused. (Street Rly. Co. v. Nolan, 53 Tex. 148; Street Rly. Co. v. Delesdernier, 84 id. 82.) The exception we refer to is the instruction concerning' the measure of the damages permitting a recovery for lost time and medical attention. Mrs. Stone was a married woman, living with and keeping house for her husband. She was not engaged in any other business. Under the decisions of this court, her serv[101]*101ices as a wife were due to her husband. He was also bound to furnish her with medical attention. (City of Wyandotte v. Agan, 37 Kas. 528; Railroad Co. v. McGinnis, 46 id. 109.) The jury, however, allowed nothing for medical attention, and specially found that there was included in the verdict $50 only for loss of time and incapacity to labor. This amount must be deducted from the judgment. The jury allowed in their verdict $400 for actual injuries received by Mrs. Stone, and $200 for bodily and mental suffering, as an element of the physical pain, or as the necessary consequence thereof. The mental was connected with the bodily suffering. This is admissible. (City of Salina v. Trosper, 27 Kas. 544.)
The judgment will be modified by deducting $50 for lost time and incapacity to labor, but affirmed otherwise! The costs in this court will be divided.
All the Justices concurring.