City of Topeka v. Tuttle , 5 Kan. 425 ( 1870 )

By the Court,

Valentine, J.

The case of the city of Topeka v. Perry C. Tuttle was decided at the present term. [Ante, p. 311.] The plaintiff in error desired to reverse a judgment of the district court of Shawnee county, in favor of said Tuttle, and against the said city of Topeka. This court, however, affirmed the said judgment, and the said city of Topeka now asks for a rehearing.

Reiieaeing: "We are satisfied with, our decision, and, of . . rrtl . course, cannot grant a rehearing. This court has passed upon every question in the case, and we think we have decided every such question correctly. If the written opinion of the court does not show that every question was passed upon by the court, it is because the judge who delivered tho opinion, inadvertently omitted to make it so show.

The court below properly refused to give the eighth, ninth, tenth, eleventh and seventeenth instructions to the jury, asked by the defendant below. These instructions arc substantially: that the city of Topeka had no corporate existence prior to the 23d day of February, A. I). 1867; and therefore, as a conclusion of law, that it would have been impossible for the city to have repaired the defective street before the 27th day of July, A. D. 1867; and, therefore, that said city was not guilty of any negligence ; and, therefore, that the plaintiff below could not recover. The premises assumed in these instructions are wrong, and the conclusions are wrong.

The plaintiff in error, in bringing her case to this court has left out all the evidence with regard to the time when the city of Topeka was first incorporated. But, as different acts of the legislature have been passed for the incorporation and regulation of the city of Topeka, from February 14th, 1857, up to February 23d, 1867, it may safely be presumed that there was abundance of evidence showing that Topeka had been incorporated (as ■ it, in fact, was,) long prior to the 23d of February, 1867. If the city of Topeka had a corporate existence before the 23d of Februrry, 1867, the passage of the act of February 23d, 1867, would not destroy that corporate existence nor create a new corporation, but it would simply continue the old corporation, in existence under a new act. Even if the said city was not incorporated until February 23d, 1867, it does not from that fact follow that it would be impossible to repair the defective street before the 27th day of July, 1867; and, therefore, that it would be impossible for the defendant to be guilty of any negligence. Even if a bridge was necessary, there is no evidence tending to show whether the bridge would have cost $10.00 or $1000.00, whether it would have taken one day or one year for its construction. We think the city might well be found guilty of negligence; for there does not seem to have been any evidence tending to show that the city had taken the first, step, or any step, towards repairing this defective street, and had not even put up any sign warning the public of the danger.

It is true, that the defendant offered to prove, by parol evidence, that the city engineer made estimates of the cost of the repairs, under the orders of the city council; but when the court refused to allow the orders of the city council, to be proved by parol evidence, it seems that the defendant below, did not then prove, or even attempt to prove, by any other evidence, that the engineer ever made any such estimates. It is the fault of the plaintiff in error, and not the fault of the defendant in error, that the evidence is not all here. We cannot presume that the plaintiff in error neglected to bring any evidence here that would have benefited her in the least. If the court below committed any error, it devolves upon the plaintiff in error to affirmatively show it. We cannot presume error in the absence of any such showing.

It is possibly true that there is some good law in the instructions referred to, but there is so little that is good law and so much that is bad law, and the good is so mingled with the bad, that the court could not have given the instructions without committing the most palpable error; and it was not bound to pick out the good lavr and reject the bad; but we think that all that is good law in them, and applicable to the case, was given by the court in other instructions.

The rehearing is refused.

All the justices concurring.