The opinion of the court was delivered by
Brewer, J.:This is the second time this case has been in this court. At first it was brought here to review the action of the district court in sustaining a demurrer to the plaintiff’s evidence. (Jansen v. The City of Atchison, 16 Kas. 358.) The ruling of the district court at that time was reversed, and it was decided that there was a question of fact which, so far at least as the present parties are concerned, ought to be submitted to a jury. A second trial was had, which resulted in a judgment in favor of Jansen for the sum of $1,000, and from such judgment the city brings error.
The first matter we shall notice is the error in giving oral instructions. The law in force (section 1, subdivision 6, Laws 1872, page 329) provides that “when the argument of the case is concluded, the court shall give general’ instructions to the jury, which shall be in writing, and be numbered and •signed by the judge, if required by either party.” And subdivision 7 of said section provides further, that “all instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record.”
• Instructions to be in writing, if required by oSeíemaík¿ of tuoi judge. It is true that the punctuation marks in this last subdivision are such that the clause quoted, which is the last part of the subdivision, seems limited in its application to the previous clauses thereof, and the words, “ all instructions,” as referring only to the instructions provided for in that subdivision; but a comparison of the entire section with the section of the code in the general statutes of which it is an amendment, makes it clear that there should be a period where there is but a semi-colon, and that the sentence quoted applies to the entire section, and includes all the written instructions provided for therein. Even if there wTere any doubt as to this, subdivision 6, supra, is imperative, and makes it the duty of the court, when required, _ 1 . , . . T to reduce its general instructions to writing. In ° ° the case at bar, the defendant fully complied with statute in requiring all instructions to be reduced to writing. Notwithstanding this, the court instructed the jury orally in submitting the ease, and these instructions thus given orally fill out eleven pages of the transcript. Further than that, as the record recites, “ the court otherwise orally explained, modified and changed the said written instructions, against the objection of the defendant.” The tenor and extent of these further changes is not indicated. Upon this, counsel for defendant in error say, and we quote from their brief:
“ 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. 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 nozo appearing in this record which we have never before seen or heard of until we commenced to prepare our brief.”
We regret that there should ever be anything in- a record to excite the suspicions of either party as to its verity, as would seem to be in this case, from the last remarks of counsel, but of course we must take the record as it was signed by the trial court and is presented to us; and, reading these oral instructions as we find them in the l’eeord, it is plain that the court instructed the jury in many matters upon the merits of the case. We make a single extract by way of illustration :
“In the instructions to the jury upon the question of notice, several instructions have been asked by counsel on each side. I have modified them so as to submit what the court considers the law of notice, and shall consider this to apply so far as notice is concerned; 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 long enough before the injury to have repaired the walk. I consider this remark applicable to all instructions given on the question of notice. We pass, then, to another proposition of the defendant, and here it contends that the defect was a latent or hidden one, and that the city had no notice of it. If this is true, then doubtless the city is not liable. I shall put it in such shape as to mean this: that before the city can be held responsible, if the defect was latent and not apparent, then it must have actual notice, or that it had existed for so long a time as to-presume notice, or that its attention was sufficiently directed to the walk to put it upon inquiry. The rule would be different where the walk is built over an area, than if flat on the ground.”
Nothing can be clearer than that in this the court is expounding the law of the case. We have had occasion heretofore to examine the question as to the necessity of written instructions, and the extent and scope of thé statute, at least in criminal cases. (State v. Potter, 15 Kas. 302. See also, State v. Huber, 8 Kas. 447; Prater v. Snead, 12 Kas. 447; State v. Mortimer, 20 Kas. 93.) We do not deem it necessary to review the question at any length in this ease. We refer to the valuable list of authorities prepared by counsel for plaintiff in error, as showing the extent to which courts have gone in enforcing statutes concerning written instructions, some more and some less stringent than ours: Townsend v. Doe, 8 Blackf. 328; Turnpike Co. v. Conway, 7 Ind. 187; Laselle v. Wells, 17 Ind. 33; Riley v. Watson, 18 Ind. 291; Railroad Co. v. Daniels, 21 Ind. 256; 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; Strattan v. Paul, 10 Iowa, 139; Head v. Langworthy, 15 Iowa, 235; Dixon v. The State,
Fla. 636; Coppage v. Commonwealth, 3 Bush. (Ky.) 532; Fry v. Shehee, 55 Ga. 208; Stewart v. The State, 50 Miss. 587; Kellar v. Belleaudeau, et al., 5 La. Ann. 609; Miller v. Hampton, 37 Ala. 342; Edgar v. The State, 43 Ala. 312. And also authorities cited in the case of State v. Potter, 15 Kas. 302.
A second matter we shall notice, is this further extract from the oral charge:' “The fact that the walk was dangerous and defective, show's negligence against the .city. On the first trial I ‘did not think the plaintiff had any case, but the supreme court thinks he had a good case.”
stcourtetojury; held, misleadinlandprejuThis statement was misleading and prejudicial. When the case was here before, it came on error to the court’s action in sustaining a demurrer to the plaintiff’s evidence. Such a demurrer can never be sustained on a , (1 . , n ,, mere preponderance; there must be a failure or testimony; and the decision was, that there was no failure, and that there was a question of fact upon which the plaintiff was entitled to the opinion of a jury. We did not decide that the preponderance was with the plaintiff, and ' that the jury ought to have found in his favor. We expressly guarded against any such construction, in these words:
“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 there 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, long enough before the injury to have repaired the walk.”
Now if the district court meant by the above expression that we had decided that the plaintiff’s case was good enough to go to a jury, the statement was correct; but a jury would naturally infer from the statement something more, and that the opinion of this court, the tribunal of last resort, was that the plaintiff -was entitled to a verdict, and that the jury ought to have found in his favor. Of- course, such an opinion would have great weight with a jury. We all know how carefully a jury scrutinize every expression from the trial court, and how quickly in any doubtful case they catch at any intimation and readily follow it in their verdict. Much more readily will they follow the deliberate opinion of the highest judicial tribunal. It stands with them as conclusive, and, yielding their- own opinions, they will accept that as correct. Whenever, therefore, the decision of this court is stated to a jury, it should be so stated that they will easily and clearly comprehend the exact limits and scope of that decision. If it is wrong for the trial judge to throw the weight of his individual opinion into the balance to influence the decision of a jury upon a doubtful question of fact, (and that it sometimes, if not always, is wrong so to do, will not be questioned,) a fortiori it is much more of an injustice to so throw the opinion of this court, and especially when the opinion is so stated, as naturally to mislead them as to the scope and extent of that opinion. True, the language refers in terms to the case as shown upon the former trial; but unless something had occurred on the trial to make it plain that the plaintiff had less testimony than on the former trial, and we see nothing to indicate this, the jury would properly consider the facts identical and the opinion as fairly applicable to the case as it stood before them. We may remark here that the vital question in this case is one of negligence, and that the tendency of decisions is to regard this more and more as a question of fact, and one to be solved by a jury rather than the court; and the case at bar is a good illustration of the propriety of this rule.
Another matter we shall notice is the following instruction :
“5. 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.”
City, not an inandeLfficieu2yof ?onabíe\s¿ema diligence. It will be borne in mind that the plaintiff’s injuries resulted, not from falling into an uncovered area or opening, but from the breaking of a part of the sidewalk covering an area upon which he had stepped, thus precipitating him beneath. This instruction must be construed with reference to the facts in the case, and it is unnecessary, therefore, to inquire whether the mere fact of leaving an uncovered opening in the walk would be such negligence as to render the city liable for any injuries which one might sustain in falling into it under any and all circumstances. But the inquiry is, whether the mere fact that the city knowingly permitted an area or opening to be made and continue under the sidewalk, irrespective of any question of the sufficiency or suitableness of the covering of such area or opening, renders the city liable for all injuries which one may suffer who, without fault on his part, breaks through such covering and falls into the area. In other words, is the city an insurer of the strength and sufficiency of such covering? Accidents ^ ° may happen, notwithstanding the utmost care. Does it warrant against all accidents? We think not. Whether it builds the sidewalks so as to rest entirely upon the ground, or builds them upon posts, pillars or walls, leaving openings beneath, the measure of its legal obligation is the same. It must use reasonable care and diligence in making the walk strong and safe. The amount of care and diligence, to be reasonable, may vary with the circumstances of the case. More precaution may be needed where the walk is lifted twenty feet above the ground, than where it rests directly upon the dirt; but in all cases it must be, relative to the danger and risk, reasonable care and diligence. That sidewalks may be built above the ground and on posts, was decided in Challiss v. Parker, 11 Kas. 384. Indeed, every one knows that they are constantly so built. Whoever under such circumstances builds up against the sidewalk, will have an area in front of his building underneath the sidewalk. So in all cities it is customary to open areas under the sidewalk in front of business houses, for light and ventilation. It would be burdensome, indeed, if in all such cases the city were an insurer of the strength of the sidewalk above such area; that no matter what care and diligence it had used, what precautions taken, it should be responsible for all injuries which anyone might sustain therefrom, if without fault on his part; that though it had done all which human prudence and foresight could suggest, it must nevertheless respond in damages. Such is not the law. Siich was not the decision in Smith v. Leavenworth City, 15 Kas. 81, nor the intimation in the opinion filed when this case was here before. Indeed, the whole scope of the discussion in this respect therein was as to the negligence of the city in failing to discover and repair the defect in the sidewalk, not as to its ignorance of the existence of the area.
proximate jury,defects m negligence. The 12th and 13th instructions given at the instance of the plaintiff are obnoxious to the same criticism as the one just noticed. They assume that the city is absolutely liable where injuries result without fault on the part of the party injured in consequence of a defect in the sidewalk above any area or opening. They ignore the fact that the proximate cause or the injury ivas the condition or the sidewalk, and that the existence of the area beneath, while it may have enhanced the injury, was not its proximate and direct cause. The city may have been negligent in permitting the area to continue, but if it was guilty of no negligence in respect to the sidewalk, it ivas not responsible for'injuries resulting from a defect in it. The existence of the area may be important in determining whether the care and diligence exercised by the city in reference to the sidewalk was reasonable or not, but its existence does not of itself make the city responsible in case the sidewalk decays and breaks. We might perhaps notice some other matters in the instructions, but these are all the questions whose decision we think necessary for the further trial of this case.
We may remark, that in the preparation of instructions and questions to the jury, as well as in the preparation of the record for this court and the briefs of counsel, it appears as though the parties were actuated by the one desire of seeing how much paper and ink they could waste. The defendant submitted one hundred and twelve special questions and asked fifty special instructions, while the plaintiff' submitted twenty-six questions and asked nineteen instructions. The petition in error extends over thirty-three pages, and contains one hundred and three specifications. The transcript stops at the 786th page, and the brief of counsel for plaintiff in error is a closely-printed book of 122 pages. Now, when the facts are many and complicated, and the case presents a series of questions, new, important, and intricate, we have no disposition to complain of the industry of counsel or the fullness of any record or brief; but in a case like the present, we think such prolixity an imposition upon both the trial court and this, and one that will often of itself justify an affirmance of the judgment. Indeed, we were no little inclined to think that such ought to be our disposition of this case; but on reflection we have concluded, for the errors noticed, that it was our duty to reverse the judgment and remand the case for a new trial, and it is so ordered.
Valentine, J., concurring. Horton, C. J., not sitting in the case, having been of counsel in the court below.