City of Ottawa v. Washabaugh

1. Appealable Obdeb.; Order Granting New Trial. A petition in error will lie in the supreme court, to reverse an erroneous order of. the district court which grants a new trial, although the action may still be pending undisposed of in the district court. 2. New Trial; Reviewing Order. Generally, where a new trial has been granted, the supreme court will require a much stronger case before it will interfere and reverse than where a new trial has been refused. 3.--Practice in Supreme Court. Where a demurrer to the evidence of the plaintiff (under section 275 of the code, as amended by ch. 162, laws of 1872,) has been sustained, and afterward a new trial has been granted; and where the petition of the plaintiff if liberally construed states a cause of action, and the evidence if liberally construed tends to prove (although very remotely) a cause of action, the order of the district court granting the new trial will not be reversed.

Error from Franklin District Court. Action by Mrs. Washabaugh to recover damages for art injury sustained by means of a defect in the sidewalk on Oak street in the city of Ottawa. Plaintiff claimed that it was the duty of defendant to construct and maintain a good and sufficient sidewalk at the place designated, but negligently suffered said walk to become and remain in an unsafe condition, etc. The action was tried at the August Term 1872 of the district court. Judgment for the defendant. The court set such judgment aside, and granted a new trial, and from this last order the cjty appeals, and brings the case here for review. The proceedings are fully stated in the opinion. 1. The petition does not state facts sufficient to sustain an action against the city, as it is not therein alleged that the city built the sidewalk which was the cause of the injury, nor that the city had notice of the alleged defects in said walk, while it does show that said defect was one not discoverable to passers-by, namely a board not nailed down. The city in the matter of sidewalks could only act by ordinance. (Laws 1872, p. 200, §32; Laws 1871, p. 148, §16; Gen. Stat., p. 160, § 30.) There is no allegation in the petition of an ordinance ordering this walk, but' on the contrary there is an allegation that it was built without any order, and not as required by ordinance No. 32. Then we say in the language adopted by this court in the case of The Oity of Atchison v. Ming, 9 Kas., 557, “Unless the city through its officers or agents constructed the sidewalk with the defect therein that was the cause of the accident, or caused such defective place to be afterward made.or placed there,” the city is not liable; and certainly if these things should be proved they should be alleged in the petition. 2. In an action against a city for injuries resulting from the defective condition of a sidewalk the plaintiff must show that the city authorities had actual notice of the defect, or that it was of such a nature, and had existed for so long a time, that knowledge on their part must be presumed; and to warrant such presumption the defect must be so open and palpable as to be apparent, and necessarily attract the attention of passersby. 15 Mich., 313; 1 Disney, 532; 24Wis., 549; 45 N. Y., 136; Dillon Munic. Corp., 753, §789. This is in cases where the walk has been properly built and the defect occurs afterward. The walk in this case was not built by the city. 1, This case is prematurely brought here, and the petition in error should be dismissed. Sec. 542 of the code empowers this court to review an order granting a new trial. But the statute does not prescribe at what time the party excepting to such an order may be permitted to seek his redress by petition in error; nor has that time ever been fixed by any decision of this court. The action is still pending in the court below, and plaintiff in error must wait until final judgment before he can complain of the order granting a new trial. 2. The district court erred in sustaining the demurrer to the evidence, and therefore, did not err in awarding a new trial. Said court had no power to give judgment at all upon the demurrer to the evidence: Gould’s PL, part 2, ch. 9, §§ 48 to 68; 22 Pick., 135. A new trial was properly granted. The plaintiff had made out a complete .cause of action, at least prima fade, and the court had erroneously taken it from the jury.