
    The City of Paola v. Mary C. Hampton.
    No. 161.
    1. Verdict — determining question of negligence, not disturbed. An appellate court cannot inquire into the question of negligence in an action for damages where the issue was properly submitted to a jury by the trial court and no exceptions were taken by either party to the instructions given, and the trial court rendered judgment for the plaintiff upon the verdict of the jury which was in his favor, the evidence tending to prove the allegations of the plaintiff’s petition.
    2. Instructions— properly refused. The instructions which were refused were either included in the general charge or were not applicable under the facts proven, and were properly refused.
    Error from Miami District Court. Hon. John T. Bums, Judge.
    Opinion filed June 9, 1897.
    
      Affirmed.
    
    
      W. B. Grossan, and A. Lane, for plaintiff in error.
    W. T. Johnston, and George Kingsley, for defendant in error.
   Milton, J.

Counsel assign as error the refusal to give two instructions asked for by the plaintiff in error. Neither party excepted to any of the instructions given. Counsel argue also that the City was not negligent, and that the injury, if any, was caused by Mrs. Hampton’s own negligence.

We cannot consider these claims, as the question of negligence on the part of plaintiff or of defendant was for the jury, and by their verdict they found that the City was negligent and that the defendant in error was not negligent. But counsel say that the City had a right to permit property owners to use part of the sidewalks for the purpose of trade and commerce, and to enhance the value of their property, when such use did not render the sidewalk dangerous to those using ordinary care in passing over it; that no basement on a public street can be used without using a part of the sidewalk; that this is the ordinary way in- the City of Paola, and probably in most cities in Kansas, and that stairways leading to basements, guarded as this one was, are not dangerous to the public. It is easy to see that, if it is left to property owners themselves to determine what is necessary or convenient in the matter of using the sidewalks in front of their buildings, the public may be obliged to use the middle of the street for safety. We are not called upon to decide the questions thus raised except in this particular case. The jury viewed the premises, and the court instructed them that, in the absence of any ordinance regulating the construction of cellar ways projecting into the sidewalks of the City, it was a question of fact for them to determine from the evidence whether or not the cellar way in question was such an opening in the sidewalk as to materially endanger and subject ¡ , to risk or personal injury, persons travel-ling on the sidewalk. The jury found for the plaintiff, and their finding concludes all inquiry as to the dangerous character of the opening in the sidewalk.

One of the instructions asked by the plaintiff in error related to the measure of damages. We think this matter was fully and properly presented in the instructions given, and that the instruction offered was properly refused. The other instruction was to the effect that persons passing over a sidewalk in a city “are bound to take notice of the existence of such obstructions as the necessity of commerce, and the convenient occupation of residences or other buildings render common, and, if injured by them, they cannot recover ; and, if the jury find the stairway in question to have been constructed and guarded in the usual manner, the plaintiff cannot recover.” The trial court properly instructed the jury &g enjoined upon a city of the second class in respect to keeping its streets and sidewalks in a reasonably safe and suitable condition for public travel, and properly limited the inquiry to the street and cellar way in question. We think the instruction asked for was improper under the facts in the case, and that it was properly refused.

No error appearing in the record, the judgment of the trial court will be affirmed.  