Cunningham v. Township of Clay

Citations

• 69 Kan. 373
• 76 P. 907
• 1904 Kan. LEXIS 260

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways—Runaway Caused by Fright at a Stone—Proof of Fright of Other Teams. In an action against a township for damages occasioned by the runaway of a team, claimed to have been caused by fright at a' stone on the roadside, it is competen.t for the plaintiff to introduce testimony that other teams of ordinary gentleness have been frightened by the same object, for the purpose of showing that it is of a character likely to alarm ordinarily gentle horses.</p> <p>2 - Proof of Similar Stones, Similarly Situated. In such action it is competent for the defendant to introduce evidence of the existence of similar stones, similarly situated with reference to the traveled portion of the highway, along the same road and other roads in the vicinity, for the purpose of showing that the stone in question does not present an unusual appearance.</p> <p>3 - Proof of Ordinary Care by Officers Not a Sufficient Defense. In an action brought under the provisions of chapter 237 of the Laws of 1887 (Gen. Stat. 1901, §579), making townships, under certain conditions, liable for damages resulting from defective highways, it is not a sufficient defense to show that the township officers had exercised ordinary care to prevent the defect upon which the action is based.</p> <p>4. -- Whether Such Stone is a Defect is for the Jury, Whether an object in the highway, but not upon the traveled part of the road, constitutes a defect, within the meaning of the statute, because of its tendency to frighten passing horses, is a matter for the determination of the jury in view of all the circumstances of the particular case.</p> <p>5. -Notice of Stone’s Dangerousness, as Well as Us Existence and Location, Necessary. Where such an object is not of an unusual character, it is essential to a recovery that the plaintiff show that the township trustee had notice not only of its existence and location but also of the fact that it had been deemed dangerous to travel.</p> <p>6