About April 15th, Mrs. Allen's father, on her behalf, tendered Gheer the interest then due on the contract. Again Gheer told him to settle with his attorney. Thereupon the plaintiff treated the contract as broken by Gheer, and on April 22d she filed this action for damages, and from a verdict and judgment for $451.50 in her favor, the defendant appeals. The errors assigned chiefly relate to the instructions. [1] 1. It is first insisted that it was error to give the instruction that, even if there was a default, the plaintiff could recover if the default was waived. The soundness of this proposition of law is not disputed, but it is contended that since this waiver was not pleaded, it was erroneous to permit its consideration. In support of the motion for a new trial, the defendant and his counsel filed affidavits, reciting "that at no time until the court actually read the instructions given to the jury was there any suggestion made in said case by any one that the plaintiff or her attorney claimed that there was any question of a waiver of the default in the contract." While the general proposition contended for by defendant is correct, that a waiver cannot be proved unless pleaded, we think that he should have raised that objection when the evidence was offered. If he did so, no error is assigned thereon. Much of the evidence related to defendant's conduct and course of dealing with the plaintiff after his return from California, which tended to show waiver, and its relevancy does not otherwise appear. Nor could it have been much of a surprise to defendant that the court instructed the jury on the question of waiver, for the defendant was ready with special questions on that phase of the case. These were allowed and answered: "(6) Did defendant waive the default in payment of the taxes for 1913? Ans. Yes. "(7) If you answer the last question in the affirmative, then state definitely and in detail all acts or statements you find of defendant that constituted such waiver, and when the same occurred? Ans. Failure to take prompt action on March 9, 1914, on defendant's return from California. That plaintiff tendered the taxes for 1913 to the defendant, and that he told her to pay same to the Shawnee State Bank. Of fer of defendant to pay plaintiff $100.00 on the surrender of her contract. Defendant's attempt to communicate by telephone with plaintiff on the subject of the contract. Defendant's statement to Linge that if plaintiff would live up to her part of the contract he would live up to his part." Furthermore, if this question of waiver was indeed a surprise to defendant, he might have asked and obtained leave to introduce testimony to contradict the evidence of waiver. If such evidence was not at hand, an adjournment or continuance should have been requested. But, as we read the abstracts, the testimony of Gheer himself went far to prove a waiver, and, under the circumstances of this case, we cannot sanction a account of the instructions, correct in themselves, which related thereto. "A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part," etc. Civ. Code, § 307 (Gen. St. 1909, § 5901). "The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court." Civ. Code, § 581 (Gen. St. 1909, § 6176). While the cases cited by appellant (Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac. 100; Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; Walker v. Insurance Co., 51 Kan. 725, 33 Pac. 597; Gillett v. Burlington Insurance Co., 53 Kan. 108, 36 Pac. 52) all hold that a waiver must be pleaded, yet they were all decided before the promulgation of the new Code. Moreover, the dissenting opinion in Insurance Co. v. Thorp, supra, decided in 1892, clearly foreshadowed the modern tendency, and the one which, at least with the aid of the new Code, may be now said to have been crystallized into established law. It was there said: "Of course, if the question of waiver was a matter of dispute, and the plaintiff relied on the ed before testimony of such waiver can be rewaiver to maintain his action, it must be pleadceived over the objections of the company. Insurance Co. v. Johnson, 47 Kan. 1, 27 Pac. 100. 'Where no objection is made to the introduction of evidence, no material error is committed by permitting its introduction.' Grandstaff v. Brown, 23 Kan. 176. If the company recognized the loss, and testimony of that fact was given, as the instructions of the court would seem to indicate, it would cure a defective allegation in the petition, and would warrant us in treating the petition as amended so as to make it uphold the judgment that was given. This court has frequently treated the pleadings as amended for the purpose of upholding the judgment, although no formal amendment was made or requested in the trial court. Railway Co. v. Caldwell, 8 Kan. 244; Baird v. Truitt, 18 Kan. 124; Gas Co. v. Schliefer, 22 Kan. 470: Grandstaff v. Brown, 23 Kan. 178; Organ Co. v. Lasley, 40 Kan. 521 [20 Pac. 228]; Jung v. Liebert, 44 Kan. 304 [24 Pac. 474].' Pages 247, 248 of 48 Kan,, page 994 of 28 Pac. In Forney v. Insurance Co., 87 Kan. 397, 124 Pac. 406, it was said: "The defendant insists that the question of within the issues formed by the pleadings, and waiver was improperly submitted because not also because it was unsupported by the evidence. As the petition did not allege that the insured had performed all the conditions of the contract, but simply that the policy was in full force at his death, the logical effect of such allegations would be that the premiums had been paid or their nonpayment had been waived. A forth whether it was in full force by reason of motion might have required the plaintiff to set tion v. Wood, 78 Kan. 812, 98 Pac. 219), but | have been considered in diminution of damno such motion was made. No application ap- ages, but apparently no allowance was asked pears to have been made for further time on acon that account. count of injecting this issue into the case; nothing appears from the record to indicate that the company was injuriously surprised thereby or deprived of the use of any desired or necessary evidence; and, as the case was fully tried and all the testimony submitted, the error, if any, does not appear to have been materially prejudicial." 87 Kan. 401, 402, 124 Pac. 408. In this view of the case, the failure to plead the waiver of the right to forfeit the contract cannot justify a reversal of this case. [2] 2. Exception is taken to an instruction in which the court said: "Both parties are seeking to treat the contract in question as repudiated." We think this was an accurate statement. The plaintiff treated the contract as repudiated by the defendant, and based her action for damages thereon. The defendant treated the contract as broken by the failure to pay the taxes, and through a bargain with the plaintiff's tenant he recovered the possession of the property. While it is true that the contract gave him that right, if promptly exercised, on plaintiff's default, the exercise of that right was nevertheless a termination of the contract relation between the parties. [3] 3. Nor was there error in the measure of damages as defined by the trial court. The general finding, with which the special findings completely harmonize, was in favor of plaintiff, and therefrom it must be deduced that the re-entry by defendant was wrongful. He kept the plaintiff's money, and without right took back the property. The very least he should do is to repay the $500. In this case the rule that the value of the property at the time of the breach is the basis for the measure of damages has no application. The court's instruction reads: "(4) Under the pleadings in this case both parties are seeking to treat the contract in question as repudiated and at an end so far as carrying out the terms of the same is concerned. If under the instructions given and the facts you find for the plaintiff, then I instruct you that the measure of her recovery is the $500 paid to the defendant on account of the purchase price of said property at the time of making the contract, with interest at the rate of 6 per cent. per annum from the date the defendant took possession of the premises, less the fair rental value of said premises from the time of delivery of possession of the same by defendant to D. L. Allen up to the date when defendant again took possession." After careful consideration of all the errors assigned, we cannot see our way clear to disturb this judgment, and it is therefore affirmed. All the Justices concurring. (98 Kan. 286) ROTHROCK v. BOARD OF COM'RS OF DOUGLAS COUNTY. (No. 20205.) (Supreme Court of Kansas. June 10, 1916.) (Syllabus by the Court.) 1. BRIDGES 37 - DAMAGES - LIABILITY OF COUNTY. The liability of a county for damages occasioned by the fall of a bridge on a county road is statutory; and, unless the damages alleged fall such liability, there can be no recovery. strictly within the terms of the statute imposing [Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 96, 103-105, 109; Dec. Dig. 37.] 2. BRIDGES 44(2) — UNLAWFUL USE-PERSONAL INJURIES-LIABILITY OF COUNTY. One who attempts to ride across a bridge on the tender of a 15-horse power traction engine (weighing more than 3 tons) when he sees and knows that the operators of the traction engine, in disobedience of the statute, are driving the engine across without the statutory planking, cannot recover damages for injuries occasioned by the fall of the bridge under the weight of the engine. [Ed. Note.-For other cases, see Bridges, Cent. Dig. § 92; Dec. Dig. 44(2).] 3. BRIDGES 44(2) PERSONAL INJURIESCONTRIBUTORY NEGLIGENCE-NOTICE. Plaintiff, who owned a threshing machine, hired the owners of a 15-horse power traction engine, presumably weighing more than 3 tons, to haul his thresher over a county road and planking the bridge, as required by section 45, bridge. The crossing was attempted without c. 248, Laws of 1911. The bridge fell under the weight of the engine, and the plaintiff, who was riding on the tender, was precipitated into a creek 34 feet below, and severely injured. Held, that he was charged with notice of the statute, and with notice that an attempt to drive the engine across the bridge without planking was dangerous, and that he voluntarily rode into a place of danger, and that such contributory negligence on his part bars him from any claim against the county for damages. [Ed. Note.-For other cases, see Bridges, Cent. Dig. § 92; Dec. Dig. 44(2).] Appeal from District Court, Douglas County. Action by Ira Rothrock against the Board of County Commissioners of the County of Douglas. From judgment for defendant, plaintiff appeals. Affirmed. John J. Riling and Edward T. Riling, both of Lawrence, for appellant. J. S. Amick, of Lawrence, for appellee. The plaintiff was entitled to recover the purchase price: Kimball v. Bell, 47 Kan. 758, 28 Pac. 1015; Kimball v. Bell, 49 Kan. 173, 30 Pac. 240; Robertson v. Talley, 84 Kan. 817, 115 Pac. 640; Monger v. Effland, 87 Kan. 712, 125 Pac. 46; 39 Cyc. 2001, 2003. DAWSON, J. This is an appeal from a If the matter had been pressed on the at- decision sustaining a demurrer to a petition tention of the court and jury that the prop-in which the plaintiff sued Douglas county erty had deteriorated in value while in possession of the Allens, through their fault as testified by plaintiff, that of course could for damages sustained by him by the falling of a bridge on a county road across Wakarusa creek. The plaintiff hired two men who For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [age was sustained; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect." Gen. Stat. 1909, § 658. These statutes were construed in Costello v. Riley County, 91 Kan. 532, 535, 138 Pac. 639, 640, in which it was said"that the intent and effect of the act of 1911 was and is so to modify the law regarding the recovery of damages in this kind of an action that planking is a condition precedent to a re owned a traction engine to haul his threshing machine from Lawrence to some place in the southwest part of Douglas county, and in crossing this bridge, without the statutory planking, the floor of the bridge gave way, throwing the engine and the tender on which the plaintiff was riding into the creek. The plaintiff fell 34 feet, and was severely injured. The petition alleged that the chairman of the county board knew of the defects in the bridge, these defects being the weak-covery." ening through age and rust of the iron stirrups which supported the "I" beams upon which the wooden stringers and bridge floor rested, and that the board of county commissioners had caused many of these stir-tempt to move such engine over a bridge. rups which were old, rusted, pitted, and weak to be rewelded and replaced in the bridge, and that the board of county commissioners knew, also, that the rewelding was imperfect and defective, and that the stirrups were wholly unfit for use. Other pertinent allegations, all to the same effect, were pleaded. [1] It does not appear that the notice of the defective condition of the bridge was a serious question in this demurrer. Probably the notice was sufficiently pleaded. Nor does it appear that the sufficiency of the petition turned upon the weight of the engine. Undoubtedly the traction engine weighed over 3 tons since it is alleged that it was a "15horse power traction engine." It appears that the demurrer was chiefly sustained on account of the failure to plank the bridge as required by section 45 of chapter 248 of the Laws of 1911, which reads: "That all persons owning, controlling, operating or managing steam or gasoline threshing machines, sawmills, traction engines or transfer wagons or vehicles of any kind used for the transportation or distribution of oil or other merchandise or commodity and moving the same over the public highway are required to lay down planks not less than one foot wide, three inches in thickness, and of sufficient length, on the floor of all bridges and culverts situated on the public highway, while crossing the same, for the wheels of said engine of any kind to run on while crossing such bridge or culvert; provided, that this section shall not apply to any machine or engine not exceeding three tons in weight; provided further, that no person, firm or corporation seeking to recover damages against any city, township or county under the provisions of this section, shall secure a judgment therein, unless the jury shall find that such person, firm or corporation had before receiving the injury complained of, complied with the provisions of this section." [2, 3] The statute imposes the duty of planking the bridge upon all persons owning, controlling, operating, or managing a traction engine weighing over 3 tons before they at He This duty primarily rested upon the owners and operators of the engine who were hired by plaintiff to haul his thresher across the bridge. The plaintiff, however, was charged with notice of the statute. He sat on the tender and was riding across the bridge. knew his employés in charge of the engine were violating the law. He knew they were imperiling their lives and limbs and taking him into danger, for the plain purpose of the statute was to safeguard against such mishaps as the very one that happened. He had no right to ride across the bridge without the statutory planking under conditions which made the planking imperative, knowing, also, that if the bridge gave way, the want of planking would bar a recovery for damages. He voluntarily and without heed or need rode into this place of danger. Knowing his employés were violating the law, and running the risk of accident, he voluntarily took chances with them, and his situation as to a claim for damages is no better than theirs. He was negligent in his duty to himself, so wanting in care and diligence in his conduct that the law will not accord him the relief which he seeks. In Falls Township v. Stewart, 3 Kan. App. 403, 42 Pac. 926, it was said: "A person, although entitled to the use of a bridge, culvert, or public highway, and entitled to do so although he has knowledge of its defective, dangerous, or unsafe condition, cannot do so in the face of certain, unavoidable danger, and if he is injured thereby in his attempt to use the same when the danger is certain and unavoidable, he cannot recover from the county or township where the bridge is located." Syl. par. 3. While the legal requirement that a bridge be planked before heavy traction engines are The statute upon which the action is found-driven across it is perhaps new, and preced reads: "Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at edents concerning the consequences of breach of that requirement are rare, yet the principle is old and familiar to lawyers. Municipal and quasi municipal corporations are not required to construct and maintain bridges capable of withstanding any and all sorts of extraordinary loads, and the statute of 1911 in effect declares that a traction engine weighing over 3 tons is an extraordinary load, and forbids its passage over a bridge (98 Kan. 356) OPLOTNIK v. CHEROKEE & PITTSBURG (Syllabus by the Court.) 1. Master and SERVANT 118 (3)-INJURIES cross a bridge with such an engine without | recover damages for injuries sustained by this planking is but going voluntarily into a him while working in the defendant's mine place of danger, the danger which the wise on December 11, 1912. The plaintiff had provision of the statute seeks to avert; and been a coal miner for 17 years, and had been the cases are numerous which hold that a working in the portion of the mine where person who needlessly crosses a bridge known the injury occurred for a month and a half. to be dangerous is guilty of such contribu- The place in which the accident took place tory negligence as will bar a recovery. Jones was a passageway termed the straight west V. Union County, 63 Or. 566, 127 Pac. 781, entry where the miners pass to and fro, and 42 L. R. A. (N. S.) 1035, and note; 8 Am. through which cars of coal running on a Dig. Bridges, §§ 91, 94; 3 Dec. Dig. Bridges, track were pulled by mules. A loaded car § 44; 5 Cyc. 1103, 1105; 4 R. C. L. 238. passing through it leaves but little room at The judgment is affirmed. All the Justices the side for a person to pass, the width of concurring. the entry varying, but it averages about 6 feet. The entry had no manholes, or places of refuge, where the miners could stand while loaded cars were passing. On the day in question the plaintiff had quit work and I was walking through the entry toward the parting. In order to pass through the entry it was necessary for him to pass two or three. trips of loaded cars standing there, one behind the other, and each attached to a tandem of mules. In passing he crawled along the tops of the loaded cars and had passed two trips and stepped down in front of the foremost car of the second trip, when the mules which he was in the act of passing became suddenly frightened and started forward, with the result that the car struck and injured him. The mules walked only a few feet, when they were stopped by another trip of cars about 8 or 10 feet ahead of them. The mules were unattended at the time they became frightened; their driver being at the parting about 120 feet from the team eating his lunch. He had been instructed to leave the team standing in the entry while the parting was being cleaned up. There was testimony that the entry at the particular point where the plaintiff stepped down from the car was not wide enough to have permitted him to climb down the side of the car instead of in front, as he did, and some to the contrary. At the trial the court overruled an objection to the introduction of any evidence, but after the plaintiff's evidence was in a demurrer thereto was sustained. TO SERVANT-PLACE TO WORK. An employé in a mine injured while passing over a trip of cars in an entry of varying width, but which was not wide enough at the place of the injury for him to pass on either side of the cars, cannot recover from his employer on the ground of the narrowness of the entry, unless it is shown that it was practicable and necessary to make the entry wider at the place where he was injured. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 209; Dec. Dig. 118(3).] 2. MASTER And Servant ~118(2)—INJURIES TO SERVANT-PROXIMATE Cause. The omission of the employer to provide manholes in the entry at intervals of 60 feet, as the statute requires, is not a ground of recovery for one injured in the entry unless there is a causal relation between the omission of duty and the injury, or the circumstances were such that the injury might have been avoided if manholes had been provided. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 209; Dec. Dig. 118(2).] 3. MASTER AND SERVANT 278(10)—INJU RIES TO SERVANT-EVIDENCE-SUFFICIENCY. Under the testimony herein it cannot be held that the employer was guilty of actionable negligence towards the plaintiff because of the fact that the driver of the team of mules attached to the trip of cars was some distance away from them when the accident occurred. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 964; Dec. Dig. 278(10).j Appeal from District Court, Crawford County. Action by Matt Oplotnik against the Cherokee & Pittsburg Coal & Mining Company. From a judgment for defendant, plaintiff appeals. Affirmed. [1] On this appeal it is contended that the evidence produced tended to show negligence on the part of the defendant in that the entry was so narrow as to be unsafe. The entries are not uniform in width, and it is impracticable to make them so because of horsebacks and rock formations through which the entries pass. No testimony was offered to show that it was necessary or practicable to make the entry wider at the Arthur Fuller and W. J. True, both of Pitts-place where the plaintiff was hurt. A witburg, for appellant. W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellee. JOHNSTON, C. J. This was an action brought by Matt Oplotnik against the Cherokee & Pittsburg Coal & Mining Company to ness spoke of another entry or passage which was open and might have been used. Within the rule of Lewis v. Coal Co., 84 Kan. 333, 113 Pac. 1045, the narrowness of the entry where the plaintiff was injured was not shown to be culpable negligence. [2] It was shown that there were no man For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes devolved upon the plaintiff to prove that holes near the place of the accident, and that existed there, it must be held that the plaintiff insists that the defendant was negli- | plaintiff failed to make out his case. Lewis gent in failing to provide them. The act v. Coal Co., supra. In order to recover, it providing for the health and safety of miners requires that manholes shall be provided at intervals of not more than 60 feet. Gen. Stat. 1909, § 4987. These are intended as places of refuge when cars drawn by mules or other animals are passing, and, of course, are not intended and cannot be used as a traveling way past trips of cars. The absence of manholes at that place did not contribute to the plaintiff's injury. The company would be liable to an employé who had been injured by reason of the omission of this duty, but it cannot be held liable unless there was a causal relation between the omission of duty and the injury to the plaintiff; and, of course, there is no actionable negligence where the omission is not the proximate cause of the injury. Here the (98 Kan. 360) HAMM . HAMM. (No. 20241.) (Supreme Court of Kansas. June 10, 1916.) (Syllabus by the Court.) HOMESTEAD 120-ORDER of Sale-DIVORCE. The plaintiff was granted a divorce from his wife. The homestead of the parties was awarded to the wife, subject, however, to a lien in favor of the plaintiff for $700. The lien scribed, an order was issued for the sale of the not having been satisfied within the time preproperty. Held, the sale should not be enjoined on the ground the court had no power to disturb before and after the divorce. the homestead rights of the defendant existing [3] The final contention is that the defendant was negligent in leaving the team of mules attached to the trip unhitched and unattended. Three trips of cars had been stop ped near the parting to clean the entry; that is, to pick up the coal that had fallen [Ed. Note.-For other cases, see Homestead, upon the track. While waiting for this to be Cent. Dig. § 215; Dec. Dig. 120.] done, the driver in charge of the trip which Appeal from District Court, Shawnee collided with the plaintiff stepped aside and County. was eating his lunch. There was another Action by Frank O. Hamm against Jennie trip 8 or 10 feet ahead of the lead mule atHamm. From judgment for plaintiff, detached to the colliding trip, and one immedifendant appeals. Affirmed. ately behind it. The plaintiff invokes the rule applicable to cases where horses are Waters & Waters, of Topeka, for appellant. left unhitched and unattended on a public Newell & Wallace, of Topeka, for appellee. street, but the situations are so unlike that the rule does not fairly apply. BURCH, J. This appeal presents in new mules were on a private way, walled in close-form an old question relating to the power of ly, with a trip of cars ahead of them and the district court over the homestead of another behind them, and hence no one had parties to a decree of divorce when awarding alimony. reason to anticipate that the mules might run away. There were no passing vehicles, and none of the frightening noises and things that are likely to be encountered on the streets of the city. No showing was made whether the mules were restive or quiet, whether direct control was necessary, whether they were accustomed to stand without hitching or guarding. Indeed, there was no testimony to show the means employed in controlling teams in the mine, whether by lines or by the voice of the driver, nor the kind of care which is necessary under such or The plaintiff was granted a divorce from that the title to their homestead was in the his wife, the defendant. The abstract states plaintiff. The homestead was awarded to the defendant, subject, however, to a lien in favor of the plaintiff for $700. The lien not having been discharged within the time limited, an order was issued for the sale of the property. The appeal is from this order, the contention being that the court had no power to disturb the defendant's homestead rights, afterward, because of the terms of the homeexisting before the divorce and continuing stead provision of the Constitution. Article 15, § 9. circumstances as existed in the mine. The mules only advanced a few steps, and it can hardly be said that, if the driver had been The substance of the defendant's contenstanding near them, he could have prevent- tion was presented to this court in the case ed the accident. To make the defendant lia- of Brandon v. Brandon, 14 Kan. 342. In ble it must be shown that something was that case the wife was granted a divorce and done or left undone by it which would have was awarded the homestead, the title to averted the accident. In the absence of evi- which was in the husband. He claimed the dence as to the disposition of the mules, the court had no power to make an adjudication care necessary to their control in order to of property rights which would compel him avoid injuries to employés, or what was due to surrender his homestead. The contention and reasonable care under the circumstances was declared to be unsound, and is unsound |