Clark v. City of South Hutchinson

Citations

• 114 Kan. 172
• 217 P. 305
• 1923 Kan. LEXIS 50

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Defect in City Street — No Error in Refusing Certain Requested Instruction. There was a defect in a city street, an opening in a culvert, which had existed for several weeks, into which the plaintiff stepped on a dark night causing her to fall and break her arm. On the trial the court instructed the jury that it was the duty of the city to keep its streets and culverts in a reasonably safe condition for the use .of the public in the ordinary modes in which the same are used at the time and place where the accident happened. The defendant requested and the court refused to give an instruction:</p> <p>“The jury are instructed, that in determining the question of reasonable care to keep its street crossing in safe condition, the location, the extent of the use of the street, and whether or not the street or highway is in a thinly or thickly populated portion of the city, are to be considered. The law does not require the same degree of care over remote streets and highways that are used but little as over those in the center of the city and constantly used.”</p> <p>Held, that there was no error in refusing the requested instruction.</p> <p>2. Same — Plaintiff Not Chargeable with Contributory Negligence as Matter of Law. Under the evidence it is held that the plaintiff was not chargeable as a matter of law with contributory negligence, the most that can be claimed is that it became a question for the jury whether she had exercised due care under the circumstances.</p> <p>3. Same — Verdict Interpreted. The general verdict must be regarded as including a finding that plaintiff was not guilty of contributory negligence.</p>