Fletcher v. City of Ellsworth

The opinion of the court was delivered by HoetoN, C. J.: In this state, a city is liable for any injury to private individuals caused by the negligence of its officers [763] in not keeping its streets in a reasonably safe and proper condition, and a city has no more right to create or permit an unsafe and dangerous condition of one of its streets than it has to create or permit a public or common nuisance. (Smith v. City of Leavenworth, 15 Kas. 81; City of Eudora v. Miller, 30 id. 494; Gould v. City of Topeka, 32 id. 485, and cases-cited.) The dedication of an alley, in this state, has the same force and is in the same terms as the dedication of a street. The fee is in the public, not in the lot owner. “Public money may be expended by a city upon alleys to improve them, and they can be used by the public generally. The abutting lot owners have no such control over them as to exclude the general public from their enjoyment, and an injury happening in an alley used for public travel, occasioned by an obstruction therein, may make the city liable for the injury so sustained.” (Osage City v. Larkin, 40 Kas. 206.) • A city is bound to keep its streets in a reasonably safe condition for persons to pass thereon in safety by night as well as by day. In one case it might require more vigilance on the part of a person traveling upon a street or alley in the nighttime than it would in the daytime; but after all the care required would simply be ordinary care under the circumstances surrounding that particular case, and nothing more. (Corlett v. City of Leavenworth, 27 Kas. 673; Osage City v. Brown, 27 id. 74; City of Emporia v. Schmidling, 33 id. 485; City of Kinsley v. Morse, 40 id. 577; 2 Thomp. Neg. 767, note 7; City of Lincoln v. Walker, 18 Neb. 244.) This court has ruled “that the onus probandi, as to the negligence of the plaintiff, is on the defendant; that if the record shows negligence on the part of the defendant, and is silent as to the conduct of the plaintiff, it makes out a case for recovery.” (U. P. Rly. Co. v. Rollins, 5 Kas. 167; Sawyer v. Sauer, 10 id. 466; Railway Co. v. Pointer, 14 id. 37.) It appears from the testimony that the cellar way or opening which Mrs. Fletcher fell into is 17 feet and 5 inches in length, and 9 feet and 6 inches deep; that it is on the west [764] side of the Masonic temple in Ellsworth, and is all located on and in the alley, not on private property. It has no railing or guards around it. When Mrs. Fletcher was injured, on the 9th of November, 1888, the night was dark. She could not and did not see the cellar way or opening. The law holds no one responsible for exposing himself to a danger of which he knows nothing, and of which he is under no obligation to inform himself. Of course, every one must use ordinary care to avoid the ordinary and usual perils that beset us, but no one is bound to guard against that which he has no reason, under the circumstances, to suspect. Mrs. Fletcher had no knowledge of the probable danger, or a sufficient reason to apprehend it, when she fell. (Kansas City v. Manning, 50 Kas. 373; City of Abilene v. Cowperthwait, 52 id. 324.) 2‘ contributory negligence Before a demurrer can be sustained to evidence, the court must be able to say that the plaintiff has entirely failed to prove a case. (Brown v. Railroad Co., 31 Kas. 1; Gardner v. King, 37 id. 671. In Christie v. Barnes, 33 Kas. 317, it was ruled that “a demurrer to evidence admits every fact and conclusion which the evidence most favorable to the other party tends to prove;” and in Wolf v. Washer, 32 Kas. 533, it was held that, “upon a demurrer to evidence, the court cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the ease of the party resisting the demurrer.” Considering all of the evidence introduced, we think there was sufficient por consideration of the jury, and that the trial court erred in disposing of the case as it did. (City of Lincoln v. Walker, supra; Osage City v. Brown, supra; Osage City v. Larkin, supra; Kansas City v. Manning, supra; Pettis v. Johnson, 54 Ind. 139; City of Abilene v. Cowperthwait, supra.) [765] , „ 1. City — cellar ™lüy inju?7 —liability. [764] In support of the judgment, it is said that the city kept a sufficient space in the alley in a reasonably safe condition for people to use in the usual way of travel; that Mrs. Fletcher, without any good reason, went outside of the traveled path and stepped into the cellar way or opening carelessly; that [765] the cellar way or opening into which she fell was a basement entrance, and that the city was not bound y J to maintain any railing around or in front of it. Whatever may be the rule permitting a part only of a street or alley to be improved for public travel, yet an injury happening in a street or alley, open for public travel, occasioned by an obstruction or excavation, may make the city liable. (Osage City v. Larkin, supra.) Mrs. Lincoln was in the line of her duty when she went out of the temple and down the alley to empty the pail which she carried. As Mrs. Lincoln did not like to go alone in the dark, she asked Mrs. Fletcher, who was assisting her, to accompany her. When Mrs. Fletcher heard footsteps coming along the sidewalk toward her, we cannot say, as a matter of law, that she was guilty of negligence in stepping into the alley, and then stepping back to wait for Mrs. Lincoln. It is possible that her injuries were more severe in stepping into the cellar way in the manner she did than if she were walking forward. If her face had been toward the cellar way, she might have protected herself somewhat with her hands. Her conduct in stepping from the sidewalk into the alley, and then moving carefully back a few steps, is for a jury to pass upon. Generally, a stairway or cellar way leading into a basement under a building is upon the lot or private ground, not a part of the alley or street, surely not wholly in the alley or street. Even when it opens on a street or alley, only a narrow entrance to the basement is generally used, and this should be protected by side railings, but, in this case, all of the cellar way was open. Over 17 feet in length were located in a public alley, not upon any lot or private ground, and without railing or guard of any kind. We can find no authority which justifies a city in devoting a large part of a street or alley to private purposes, to the injury of the traveling public. Upon a street or alley the rights of the public are paramount. Our attention is called by the counsel of the city to Beardsley v. City of Hartford, 59 Conn. 529; Fitzgerald v. City of [766] Berlin, 51 Wis. 81; Alline v. City of Le Mars, 71 Iowa, 654; Zettler v. City of Atlanta, 66 Ga. 195, and similar cases. So far as the Beardsley case is concerned, it may be- observed that in Connecticut municipal corporations are liable only by force of the statute. In that case, the open space in front of the hotel was upon private property — not in an alley or street. The court remarked: “The city had no power to erect a railing that should simply fence in, in front and on the sides, this basement stairway. It would have had to go upon private ground to do this, and that it had no power to do.” In the Fitzgerald case, it is not clear that the stairway was within the limits of the sidewalk. The court said: “Structures of this character, which do not encroach upon the sidewalk, are lawful. The existence of such a structure, however, imposes upon the municipality in which it. is situated the duty of providing proper safeguards to prevent the happening of accidents, by reason of its proximity to the sidewalk, to persons traveling thereon with ordinary care.” In the Alline case, it was not so dark but that the plaintiff could see; but that decision, unless founded upon the opportunity of plaintiff to avoid stepping into the hole, is not satisfactory to us, considering what is said in the case of Kansas City v. Manning, 50 Kas. 373. In the Zettler case, the plaintiff voluntarily left the sidewalk, and fell into an excavation on a vacant lot. She was not injured on an alley or a street; but the court in that case remarked: “ Had this excavation been near enough to the sidewalk for accidental deviation or an unintentional misst- p to have caused the injury, then the case would have been such as to make the corporation liable.” The judgment will be reversal, with direction to overrule the demurrer, and for further p >ceedings in accordance with the views herein expressed. All the Justices concurring.