City of Atchison v. Jansen

1. Instructions to be in Writing, if Required by Either Parly; Oralt Remarles of Trial Judge. The statute provides that in civil cases the court shall, when requested by either party, reduce its instructions to writing. This provision is mandatory, and a disregard of it is error, compelling a reversal. Hence, when the record contains several pages of instructions, which were given orally to the jury, in disregard of the demand of one party for written instructions, and some of which are plainly instructions upon the law of the case, and not mere directions as to the form of the verdict or other collateral matters; held, that this court must reverse the judgment on the petition of the party demanding written instructions, irrespective of the question whether such oral instructions as are incorporated into the record, are correct statements of the law applicable to the case. ■2. Statement oe Court to the Jury, Held, Misleading and Prejudicial. On the first trial of an action brought to recover damages for personal injuries, sustained through the alleged negligence of defendant, the trial court sustained a demurrer to the plaintiff's evidence. On review, this court reversed this decision, holding that there was some' testimony tending to sustain the allegation of negligence; and that, therefore, there was a question of fact to be submitted to the jury, and that the court erred in withdrawing the question from them. In the opinion, this court expressly declined to decide upon which side was the preponderance of the testimony, and stated what must be found to exist before negligence could be imputedr to the defendant. On the second trial the court stated to the jury as follows: “On the first trial I did not think the plaintiff had any case, but the supreme court thinks he had a good case.” Held, Misleading and prejudicial. 3. City, Not an Insurer oe Strength and Sueeioiency oe Sidewalks ; Reasonable Care and Diligence. Though a city builds its sidewalks lifted above the ground upon posts, leaving openings underneath, or permits the owners of lots abutting to excavate areas under the walk, it does not become an insurer of the strength and sufficiency of the sidewalk above such openings and areas. Its undertaking is to use reasonable care and diligence — reasonable with reference to the risk and ' danger — in placing and maintaining suitable and sufficient plank or other covering of such openings and areas, and is responsible only in case of a failure to use such care and diligence. 4. Pkoxihate Cause of Injury; Defective Sidewalk; Negligence. Where the proximate cause of an injury, is a defect in the sidewalk, the question is as to the negligence of the city in respect to that sidewalk, and not in respect to the existence of an area under the sidewalk, and that notwithstanding such area may have enhanced the injury resulting from the defect in the sidewalk.

Error from, Atchison District Court. In September, 1873, George Jansen, the defendant in error, ■commenced his action against The City of Atchison and A. G. •Otis, to recover damages in the sum of ten thousand dollars, by reason of personal injuries alleged to have been received by him on August 10th, 1873, through defects in a certain ■sidewalk of one of the public streets of the city of Atchison. •Jansen’s petition alleged, among other things, that on said 10th day of August, 1873, while he was lawfully and without ¡any negligence on his part, walking along and over said sidewalk, on Commercial street, in the city of Atchison, the sidewalk broke through and precipitated plaintiff into an area ¡under the walk, causing great and permanent injury to his person, etc.; and that said injuries were occasioned by the negligent construction by the defendants of said sidewalk, .and by their negligent permission of the aforesaid defects in said sidewalk to continue, and from their negligent permission of an old, defective' and dangerous sidewalk to remain and ■exist. The plaintiff also stated in his petition that the defendant Otis was the owner and possessor of the lot and premises on said Commercial street, in front of which the said defective sidewalk existed at the date of the injuries .complained of. .Other statements of his petition, the defenses set up by the defendants, and the material facts, sufficiently .appear in the opinion in the case of Jansen v. The City of Atchison, 16 Kas. 358. Trial at the June Term, 1874, of the district court. When the plaintiff rested, the defendants, The City of Atchison and A. Q. Otis, filed separate demurrers to the evidence. These demurrers were sustained by the court, the jury was discharged, and judgment entered in favor of the defendants for costs. 'Jansen brought the case here on error, and upon review thereof in this court, the case was sent back with instructions to reverse the judgment, in favor of the city, and grant a new trial; but the judgment in favor of defendant Otis was affirmed. (Jansen v. Oity of Atchison, 16 Kas. 387.) A second trial of the case was had at the November Term, 1876, of the district court, when the jury found for the plaintiff Jansen, and assessed his damages at $1,000. A new trial was refused, and judgment rendered for plaintiff Jansen and against The City of Atchison, defendant, in accordance with the above verdict. To reverse this judgment the defendant has brought the case here for review. Other facts appear in the opinion, infra. The court erred in orally charging and in instructing the jury against the objections of the defendant, and in disregarding the request and demand of the said defendant, that the general instructions or charge of said court to the jury should be in-writing; and also erred in its oral instructions and oral charge to the jury against the objections of the defendant; and also erred in orally modifying and changing the written instructions which the court had given to the jury at the request of the parties to the action. In support of the foregoing views, counsel cited the following cases: Townsend v. Doe, 8 Blackf. 328; McCtay v. State, 1 Ind. 385; Kenworthy v. Williams, 5 Ind. 375; Turnpike Co. v. Conway, 7 Ind. 187; Long v. Deal, 16 Ind. 349; Laselle v. Wells, 17 Ind. 33; Tenbrook v. Brown, 7 Ind. 410; Riley v. Watson, 18 Ind. 291; Railroad Co. v. Daniels, 21 Ind. 256; Widner v. State, 28 Ind. 394; Feriter v. State, 33 Ind. 283; Meredith v. Crawford, 34 Ind. 399; Hardin v. Helton, 50 Ind. 319; Railroad Co. v. Rowland, 51 Ind. 285; Patterson v. Ball, 19 Wis. 259; Hardy v. Turney, 9 Ohio St. 400; Pierson v. Baird, 2 G. Greene (Iowa), 235; Strattan v. Paul, 10 Iowa, 139; Head v. Langworthy, 15 Iowa, 235; Dixon v. State, 13 Florida, 636; Coppage v. Commonwealth, 3 Bush. (Ely.) 532; Fry v. Shehee, 55 Ga. 208; Stewart v. State, 50 Miss. 587; Kellar v. Belleaudeau, 5 La. Ann. 609; People v. Beeler, 6 Cal. 246; People v. Payne, 8 Cal. 241. In this last case, (8 Cal. 241,) it was held that verbal modifications of instructions were erroneous, and when the instruction itself was required by.the statute to be in writing, then each part composing it must also be in writing. People v. Demint, 8 Cal. 423; People v. Ah Fong, 12 Cal. 345; People v. Woppner, 14 Cal. 437; People v. Chares, 26 Cal. 78; People v. Trim, 37 Cal. 274; People v. Sanford, 43 Cal. 29; People v. Bospero, 44 Cal. 186; People v. Max, 45 Cal. 245. See, also, Polly v. McCall, 37 Ala. 20. In the case of Miller v. Hampton, 37 Ala. 342, the court say that one of the purposes of the law is, that there shall be no misunderstanding as to what the charge is. Edgar v. State, 43 Ala. 312, decides that in such cases the court cannot add any qualifications, and if any qualifications are so added, the judgment will be reversed for such error. The law is plain, direct and peremptory, and must be obeyed. To the same effect are the cases of Lyon & Co. v. Kent, Payne & Co., 45 Ala. 656; Knight v. Clements, 45 Ala. 89; Bush v. Glover, 47 Ala. 168; Williams v. State, 47 Ala. 659. See, also, Clarke v. State, 31 Tex. 574; Dorsett v. Crew, 1 Col. 18; Gill v. People, 1 Col. 61; State v. Cooper, 45 Mo. 64; Thompson v. People, 4 Neb. 524; Ray v. Wooten, 19 111. 82; Bloomer v. Sherrill, 11 111. 483; O’Hara v. King, 52 111. 303; O’ Donnell v. Segar, 25 Mich. 367; Swartwout v. R. R. Co., 24 Mich. 407; Mallison v. State, 6 Mo. 399. We further call attention to the remarks of the court in said oral charge, as follows: “On the first trial, I did not think plaintiff had any case, but the supreme court thinks he had a good case.” We have carefully examined the opinion of this court in the case referred to by the court below. (.Jansen v. City of Atchison, 16 Kas. 358.) On page 384, the learned judge delivering the opinion, speaking upon the right of the plaintiff to have had the question as to the city having notice of the defect in the sidewalk submitted to the jury, says: “Now it seems to us that here was testimony which ought to have gone to the jury, and that the court erred in taking the question from them. We do not mean to intimate that a jury ought to find from this testimony that sufficient notice existed to charge negligence upon the city, but simply that here was a question of fact which it was for them, and not the court, to pass upon. And in order to guard against any misconception, we desire to emphasize the fact that, before the jury may find negligence, they must be satisfied that the city had notice of the defect, or had knowledge of facts sufficient to put it upon inquiry.” We forbear comment. The court also erred in giving instruction No. 5, requested by plaintiff, which was as follows: “The jury are also instructed in this case, that the city of Atchison had no right to permit Mr. Otis, or any other person, to use any portion or part of the street as an area-way or opening, or to construct' an area-way or opening therein; and if the jury find from the evidence that there was an opening or area-way under any part or portion of said street, constructed by Mr. Otis or any other private individual, and that the city of Atchison had notice thereof, or permitted said area-way or opening to remain there after a reasonable time had elapsed from its construction, so that it should have had notice thereof, and the jury further find from the evidence that any injury resulted to the plaintiff, without fault upon his part, on account of said area or opening, then the jury ■will find for the plaintiff.” There was no evidence upon which to base such instruction, and we submit that'by this instruction the court told the jury that if there was an opening or area-way under any part or portion of said' street constructed by a private individual, and the defendant had notice thereof, or permitted it to remain there after reasonable time had elapsed from its construction so that it should have had notice thereof, then the city would be liable for injury, even if the covering or sidewalk was in a perfectly safe condition under all ordinary circumstances for persons traveling upon the street. This certainly cannot be law, for even in such a case as stated in said transaction, the defendant would not be liable- for some unforeseen injury resulting from some fortuitous circumstance-which could not, in the ordinary course of events, be expected or anticipated as likely to occur. (Smith v. Leavenworth, 15 Kasi 86.) In the case at bar, the area was not and could not be used for any other purpose in connection with the building, and, unlike the case above referred to, was not an opening in the sidewalk; but the area, if we may so term it, was covered over with a permanent walk, which was put down in such a manner as to entirely cover and close the same up." Now this instruction excludes all idea of notice of any defect in the sidewalk to the city, either presumptive or actual, but holds the city liable upon the mere fact that an opening was permitted to remain under the sidewalk. Can it be said that a city is compelled to fill up “with earth or other solid substance” every excavation or hole under its sidewalks, or. that, upon a failure in this respect, it would be liable for every-accident which might occur to travelers upon its walks? We-submit that.this would be a harsh rule as to cities situated upon the bluffy banks of the Missouri river. The court- erred in giving instruction No. 12 requested by plaintiff, which was as follows: “The jury are instructed that it is the duty of the city of Atchison to keep its streets and sidewalks, which it has established, in a safe condition, and that this duty cannot be surrendered or abdicated to the owners of the lots abutting on said streets or sidewalks, so as to make the city not liable; and the city of Atchison is liable for any injury to the plaintiff, caused by any opening or excavation made in the sidewalks with its knowledge or consent, expressed or implied, by the lot-owner, for the purpose of an area under said sidewalk, which did not occur by the fault or negligence of the plaintiff.” This instruction had no application to the facts in the case.. There was no evidence tending to show that the defendant-had ever surrendered or abdicated to any person its duty in regard to the maintenance of a secure sidewalk. Nor was there any evidence that the claimed opening or excavation was ever made with the knowledge or consent of the defendant, either expressed or implied, of that any lot-owner had made the same for the purpose of an area under the sidewalk. We further submit that the defendant would not be liable, absolutely, by proof of the mere fact that there was an excavation or opening under the sidewalk. The court erred in giving instruction No. 13 requested by plaintiff, which was as follows: “The jury are instructed that the defendant had no authority to permit an area or opening to be constructed in or under •a sidewalk by any private person, except for the purpose of passing and repassing; and if the jury find from the evidence that there was an area or opening under said sidewalk, by reason of which the use of the sidewalk over, the same was rendered more dangerous, the city is guilty of negligence if it permitted said opening or area to remain after it could, by the exercise of reasonable, diligence, have discovered such area or opening; and if the plaintiff received injuries without fault on his part, by reason of falling into such area, on account of defects in the sidewalk, the defendant is liable to plaintiff for any damages sustained by him.” There was no evidence upon which to base this instruction, nothing tending to show that the city had ever permitted an •area or opening to be constructed in or under the sidewalk by any private person. We contend that instruction No. 5, given by the court, was within the case of Smith v. Leavenworth, 15 Kas. 81, and there was evidence to show that this area had been used for years •on the most public street in the city of Atchison (Commercial •street); that there was a pair of stairs leading down from the .sidewalk into this area; that this stairway was open to public view, and no one pá'ssing on this sidewalk could help seeing the same; and that this area led into the cellar of the building through a door. That this sidewalk was covered by a rotten, old and defective sidewalk, there can be no doubt. The evidence shows this beyond peradventure, and the jury so found. “If the negligence of the defendant was the direct and immediate cause of the injury,.and that of the plaintiff only the remote cause, or, if the negligence of the defendant was gross, and that of the plaintiff only slight, there is no such contributory negligence on the part of the plaintiff as will prevent his recovering.” (Pacific R. R. Go. v. John Plouts, 12 Kas. 328.) “ Though the rottenness of the stringers was not apparent, the circumstances might be such that a man of ordinary prudence would expect decay, and ought to have made examination.” {R. & W. IP. Township v. Moore, 68 Penn. St. 404; 9 Kas. 384.).. “Cities are liable for hidden defects in sidewalks.” {Burt v. Boston, 122 Mass. 223; Requa v. City of Rochester, 45 N. Y. 129; Wessenberg v. City of Appleton, 26 Wis. 56; City of Ripon v. Rittle, 30 Wis. 614; Mercy Boches v. Gibbe, 11 H. L. Cases, 687; Davenport v. Ruchman, 37 N. Y. 5.68.) A municipal corporation must keep the streets and sidewalks in good repair, and is liable for neglect, whether willful or otherwise. (Norristown v. Moyer, 67 Penn. St. 355,367; Erie v. Schwingle, 10 Harris, 384; Pittsburg v. Grier, 10 Harris, 55.) Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets or sidewalks in repair, as well as for those caused by defects occasioned by the wrongful acts of others. (Dillon on Mun. Cor., 2d ed., vol. 2, ch. 23, §790, p. 920; Huston v. Mayor, &c., 9 N. Y. 163; 67 Pa. St. 355.) If the defendant made or continued a covered excavation on Commercial street, or on the sidewalk, then it is responsible for all injuries resulting from the way being thereby rendered less safe, in the absence of negligence in the party injured. {Congreve v. Smith, 18 N. Y. 79; Smith v. Leavenworth, 15 Kan. 81; Requa v. City of Rochester, 45 N; Y. 129 * Dygert v. Schenck, 23 Wend. 446.) Instruction No. 12, given by the court at request of plaintiff, and objected to by defendant, we contend was also law. By using this sidewalk and repairing the same, and recognizing it as a public sidewalk, the city becomes liable for injuries occasioned by its negligence in failing to keep it in repair. {Requa v. Rochester, 45 N. Y. 129.) It is held that the city has notice of a defective or dangerous sidewalk, or the unsafe condition of the street, if such defect continues for such a length of time as to load to the presumption that the city did in fact know, or with proper diligence and care might have known such defect. {Roal v. Williams, 29 Iowa, 210, 215; Wend v. Jefferson, 24 Wis. 342.) The evidence in this case shows that the excavation or opening under the sidewalk existed a long time prior to the time the injuries were received by plaintiff, and that the sidewalk in front of the building was old, warped, defective and rough, and that the sidewalk covering the excavation or opening beneath was of cottonwood, old and defective. The fact that a person injured by a defect in the street or highway had previous knowledge of the defect is not conclusive evidence of negligence on his part; it is a fact to be submitted with other evidence to the jury. {Smith and wife v. City of St. Joseph, 45 Mo. 449.) “The city is liable primarily for excavations or obstructions made or placed in or upon a. street by a citizen for private purposes, and to guard against the occurrence or continuance of such defects some attention and oversight are required.” {Market v. St. Louis, 56 Mo. 189; Cusick.v. Norwich, 40 Conn. 375; Boucher v. New Haven, 40 Conn. 457; Sterling v. Thomas, 60 111. 264.) ' The existence of a defect in the sidewalk of a prominent thoroughfare of a city for some months previous to the accident, is constructive notice to the city. Moore v. Minneapolis, 19 Minn. 300; Reinhard v. New York, 2 Daly (N.Y.), 243. “It is not required that the traveler’s thoughts should be constantly upon the condition of the way over which he passes, as to its want of repair; that circumspection only is required which prudent men ordinarily use.” (Barton v. Springfield, 110 Mass. 131.) The counsel for the plaintiff in error claims that the court below gave oral instructions to the jury, which we claim is not a fact — the difference being that what was said by the court was only in.explanation of the many instructions and particular questions of fact which the court was about to submit to the jury. This was no part of the charge, nor of the instructions in the case, within the meaning of subdivision 6, laws 1872, page 329, or of subdivision 7 of said laws; and this statute was not intended to include any and every question and answer passing between the court and jury, nor simple matter of explanation; neither does the statute contemplate any such thing. (Patterson v. Ball, 21 Wis. 243; Millard v. Lyon, 25 Wis. 516; Grant v. Insurance Co., 29 Wis. 125; 30 Ind. 476; Hasbrouck v. Milwaukee, 21 Wis. 217; State v. Potter, 15 Kas. 302; People v. Bonney, 19 Cal.) On this point we desire to say to the court, that in this-explanation of the court of the special questions, etc., there are certain statements now appearing in this record which we have never before seen or heard of until we commenced to prepare our brief. Some sixty instructions asked by the parties were given by the court to the jury, and about eighty particular questions of fact were also submitted to the jury, and certainly defendants were not in the least prejudiced by the reading over to the jury of these instructions and particular questions of fact, and informing them how they should arrive at their answers. All of the propositions and statements made by the court were simply a reiteration of the contents of the written instructions given by the court, and no change or modification whatever was made of the written instructions. How then can plaintiff in error claim that it has been prejudiced?