The advocate., 1894-10-10
Error irom COWley County.


AFFIRMED.
SYLLABUS. BY THE COURT. HORTON, G. ]
/. An objection to a petition that 1t does
not state facts sufficient to constitute Q cause
OF action is good only when there Is q total
failure to allege some matter which is essen
tlal to the relief sought, and Is not good when
Ghe allegations are simply incomOlete, lndef-
finite, or statements of conclusions Of law
Lathe vs. Mcdonald, z Kas., 262.
a Where the defect or obstruction in q
street or city Is patent or obvious and has
continued so long that notice may be reason
ably inferred, or where the defect or obstruc-
ton is one which with reasonable or proper
care should have been ascertained and reme-
died, the city Is liable for the Injuries result
ing from such defect or obstruction. Jansen
vs. City OF Atchison, 16 Kas., 1858; Kansas City
vs.. Bradbury, As Kss., 3S1.
8. Where petition alleges that the city on
the date OF the injury complained OF and for q
long time before that date negligently and
carelessly permitted street railway company
TO construct and maintain It's track on street
OF the city in such q careless and negligent
manner as to dangerously obstruct travel,
and further alleges that the railway company
constructed its track over and along the street
OF the Cityin such careless and negligent man.
ner that the same was on the day OF the injury
and for o long time before that day danger
Ou8 OD9hFucLAOQ w bEhNBl On Ln6 htEbbk HSUtp
That in the absence Of any attack upon the
petition by demurrer or motion, that the alle-
cations were sufficient to charge the city with
notice or knowledge of the defect or obstruc-
tion In the street caused by the construction
and maintenance of the track Of the street
a Where evidence Is admitted which Is not
materially prejudlcial, the judgment will not
be reversed therefor.
& Where street railway company Is under
q contract with the city ito construct and
keep its railway in such q manner and condi-
tion IS not to prevent the crossing OF the
streets by teams and wagons at any point with
safety" and q person rightfully driving on the
street or crossing the track Of the railway, ex-
ercises due care and Is injured by reason OF
the negligence OF the railway company In the
construction Of its track or in suffering 1t to
become dangerous to travel, and the city per-
mitted the railway to be 80 constructed as to
be dangerous to travel, or had notice or knowl.
edge that the railway was out OF repair and
dangerous to travel both the railway COM
pAny and the city would be liable.
G. According TO the weight OF authority,
city is liable where horse takes fright, with
out any negligence on the part Of the driver,
at some object for which the municipality Is
not responsible and gets beyond the control Of
his driver and runs away and comes In con-
tact with some obstruction or defect in the
road or street, which the city has been negh-
gent in not removing or repairing, II the In
juries would not have been sustained, but for
the obstruction or defect.
T. The rule is, that where two causes COM
bine to. produce the injury, both in their ma
ture proximate the one being the defect or
obstruction in the public street, and the other
some occurrence for which neither party Is
responsible, the city Is liable provided the in.
jury would not have been sustained, but for
the defect In the street.
8. At the conclusion OF the evidence and at
the time when the court was about to give
oral instructions to the jury, counsel for the
defendants requested the court TO give the IN.