
    No. 33,624
    George Dolloff, Appellee, v. The City of Wichita, Appellant.
    
    (75 P. 2d 221)
    Opinion filed January 29, 1938.
    
      Vincent F. Hiebsch, K. W. Pringle and Forest McCalley, all of Wichita, for the appellant.
    No appearance was made for the appellee.
   The opinion of the court was delivered by

HaRvey, J.:

This was an action for damages for personal injuries sustained by plaintiff and damages to his automobile alleged to have resulted from a defective street. The answer was a general denial and a plea of contributory negligence. A jury returned a verdict for plaintiff, which the trial court set aside on its own motion because of some misconduct of the jury. Defendant has appealed, and contends its demurrer to plaintiff’s evidence should have been sustained.

In July, 1935, a double line of streetcar tracks was being torn up and removed from Topeka avenue, a north-and-south street, paved forty-five feet wide, in the city of Wichita. The method of doing the work was to loosen the bricks along the side of a rail, raise one end with jacks, keep working along the rail loosening bricks, and raising it to where it was attached to the next rail, disconnecting the first one and taking out the next one in a similar manner. This left an open strip in the pavement about sixteen inches wide and four or five inches deep. To the side of this the pavement was in good condition a width of fourteen feet to the curb. When the workmen quit at five o’clock on Saturday evening they left an end of a rail pried up and blocked to a height of about eighteen inches above the pavement. There is testimony the workmen piled brick up in front of it and hung a red lantern there, but if so, the lantern was gone and the pile of brick knocked down at the time of the incident next to be stated.

The next day plaintiff took his wife to church, about eleven o’clock in the morning, and returning home turned into Topeka avenue in the block where this rail was left raised and blocked. He drove along this street for some distance with his car wheels straddling the ditch made by taking up the rail, and into the raised end of the rail, at a speed of fifteen to eighteen miles per hour. The raised end of the rail caught the lower part of his car, causing the injuries and damage for which the action was brought. It was a clear day; the street was dry. No reason was given for his driving on the torn-up part of the pavement; there was ample room for him to drive near the side of the street. He testified:

“Q. As you drove southward on Topeka avenue, did you keep a careful lookout for your own safety? A. No. I didn’t look out because I wasn’t looking for anything.”

There was nothing to keep him from seeing the uplifted end of the rail if he had looked. It seems clear that his own lack of care was the real cause of his injuries and damage. The demurrer to his evidence should have been--sustained.

The judgment of the court below should be reversed, with directions to enter judgment for defendant. It is so ordered.  