City of Guthrie v. Thistle

The opinion of the court was delivered by McAtee, J.: It was assigned as error, that (1) the petition failed to state facts sufficient to constitute a cause of action, and that the court erred in overruling the defendant’s demurrer thereto, and (2) that plaintiff’s testimony showed that she was guilty of negligence, directly contributing to the injuries sustained by her, and that the direct and proximate cause of her fall was *522 due to the wire which caught or tripped her, without any fault or negligence on the part of the city, and hence the court erred in not sustaining the demurrer to the plaintiff’s testimony, and (3) in not sustaining the motion for judgment upon the special findings of fact, for the reason that the general verdict was inconsistent with the special findings. The first assignment of error was abandoned in the brief of the plaintiff in error, and the cause was argued upon the propositions that the court erred in not sustaining the motion for judgment, upon the special findings of fact, in as much as the general verdict assessed the plaintiff’s recovery in the sum of $500, while in the special findings of fact the jury assessed the amount of plaintiff’s recovery in the sum of $300; and that the special findings of fact were inconsistent with the general verdict of the jury and should control it, and that judgment should have been rendered accordingly. This proposition is not applicable here for the reason that the finding of the jury, that they allowed $300 for incapability to perform labor, and did not include all the elements of damage admissible and which would be included in a general verdict for damages in a suit of this character. Such additional elements of damage would include bodily injuries, pain and suffering, as well as mental suffering, in addition to that loss which they found she had suffered by reason of her incapacity to perform labor. And the finding that a specified sum was found to be the equivalent for a particular element of lost, does not render a verdict invalid for a larger sum, which necessarily includes in its estimation, other proper elements of damage. (Winstead v. Standeford, 21 Kan. 270). *523 If the plaintiff in error proposed to avail himself of the failure of the jury to make a finding to the twenty-third interrogatory it should have been done at the time that the special findings of fact were returned by the jury. A failure to object to the return of special findings of fact and to permit the jury to be discharged without specifically answering the inquiries which they had neglected or failed to answer, or had overlooked, is a waiver of the right to an answer. The application should have been made to the court to require an answer, and an exception taken at the time, if the application had been overruled. (Long v. Duncan, 10 Kan. 294; Vator v. Lewis, 36 Ind. 288; Thompson on Trials, § 2685; Bradley v. Bradley, 45 Ind. 67; Barkow v. Sanger, 47 Wis. 500). Upon the second proposition of error, that the “testimony in this case conclusively shows that the plaintiff was guilty of negligence directly contributing to the injuries sustained by her, and that the direct and proximate cause of plaintiff’s falling was due to a small baling wire which caught or tripped her as she was attempting to pass on the sidewalk, proceeding side-ways.” This proposition presented here is that, if the plaintiff observed or was made aware of some difficulties which existed at the point mentioned in the petition, and yet attempted to pass over the sidewalk at that point and suffered injury thereby, that she was thus guilty of such contributory negligence as would preclude her recovery, and that, as a matter of law, the jury should have been thus instructed^ or the demurrer to the plaintiff’s evidence sustained or judgment entered for the plaintiff in error here. This proposition as thus stated and contended for by the plaintiff in error, has not been sustained by previous *524 decisions of this court, nor do the facts in the case justify us in sustaining that view to be the law, upon the facts as they appeared in the evidence. While the testimony showed that the plaintiff saw that there was an obstruction over which she stumbled, when she got up to it, and that she thought there was plenty of room for her to walk right along on the sidewalk, and that she caught her foot on a little piece of baling wire, . and she thought that was the thing that made her fall, it yet also appeared that the event occurred at 8 o’clock at night, in January, and that the electric light at the corner of the street near by was not burning, and that she was in the habit of coming along that street repeatedly to and from her boarding house to her place of business; that there was no warning or danger signal near to the point where the obstructions were, and the territory where the injury occurred; that there was a path eighteen inches wide, where she could have proceeded safely but for the wire; that the wire was stretched from side to side of the sidewalk at different places at that point, and that she had never seen the sidewalk in that condition before; that she had never noticed that the sidewalk had been taken up or anything done there before she was hurt; that at the time the injury occurred she could not see that there was an obstruction there, and building going on and digging done; that she could only see the width of the sidewalk in front of her, and distinguish it as different in color from the adjacent soil of the street; that she walked “very carefully, believing that she had about the width of eighteen inches to walk upon” and could walk safely over it by being careful; that she was walking “very quietly and slowly and steadily” and that “as well as she could see there was plenty of room to walk,” and that she thought it was left there on purpose *525 as a passage way, and could not see any walk around any other way, and that she was going along “very quietly,” and something caught over one foot first, and then she went to put the other up and it caught and she fell, and it seemed to her at the time to be baling wire, and that when it came across her foot it seemed to be like something smooth. There was evidence here to show that the absence of the usual light at the corner of the street, and the absence of a danger signal, and existing dangerous conditions of the excavation by the sidewalk, and large stones unloaded there occupying the sidewalk, and baling wire stretched across from side to side upon the sidewalk in connection with the building which was in process of construction, or about to be erected, at the point where the public, including the plaintiff, had a right to pass, and had a right to presume that the passage way was in a safe condition, were circumstances which should be left to the jury to determine the plaintiff’s right to recover. And the defendant’s rights were protected when the court instructed the jury that, notwithstanding the averments of her petition were proven, she could yet, not recover, if they found that she was in the attempt to pass the point of obstruction not in the exercise of due and reasonable care. Upon the state of facts adduced in evidence here, the court gave the proper instructions to the jury, and it is not reversible error, but is correct, for the court to have told the jury, as it did, that, under such circumstances, the question was one for the jury to determine whether the plaintiff was in such due and reasonable care at the time as to entitle her to recover as against the defendant. It was incumbent upon the city to keep its streets and sidewalks reasonably safe for public *526 travel, and it is not released from this liability by reason of the defective condition of the sidewalks by the mere fact that the plaintiff could see that the street was not in its usual condition. And the mere fact that the plaintiff attempted to pass over the street after having noticed that there was something wrong with it, does not, of itself, constitute negligence, and would not have justified the court in taking the case from the jury. (Maulthy v. Leavenworth, 28 Kan. 745; Oklahoma City v. Welch, 3 Okla. 294). The judgment of the lower court is affirmed. Dale, C. J., having presided in the court below, and Keaton, J., having been of counsel, not sitting; all the other Justices concurring.