Rainey v. Lawrence. stantly on the walk, nor his thoughts at all times fixed upon the known defect; but, considering the nature of such known defect, if any, and the dangers that might reasonably be apprehended therefrom, and all the attendant circumstances, you must say, as a matter of fact, whether the plaintiff herself exercised proper care. If she knew of such defect, or in the exercise of reasonable and ordinary care might have known it, she ought to have exercised a corresponding degree of care.' There was nothing in the evidence upon which to base a finding that the plaintiff knew of the defect that caused the injury, or by the exercise of ordinary diligence could have known of it, unless it can be said that the jury were justified in inferring that, as she had passed over the place of the accident but a few moments before it occurred, she must have seen the walk and have become aware of its defective condition if she used reasonable care. Such an inference might have been ten able if the occurrence had taken place in the daytime, or if there had been evidence of some artificial light sufficient to enable a traveler to discover the defect; but the affair having taken place upon a dark night, with no illumination but that furnished by a dim light at the head of the stairway, there was no basis for a conclusion that plaintiff actually learned of the condition of the walk, and for her failure to perceive the danger and guard against it negligence could not be imputed to her. It might, perhaps, be argued, from the circumstance that witnesses were able to see and describe in some detail all that took place, that there must have been some other light than that described. Granting the soundness of the argument, it does not appear that any such additional light was of sufficient power to reveal the condition of the walk. If, in fact, there was other Rainey v. Lawrence. illumination, or if there was light enough from any source to render the paving stones visible, it was incumbent upon defendant, upon whom the burden of proof of contributory negligence rested, to show it. In the absence of any evidence that would justify a finding that plaintiff knew of the defect in the sidewalk, or by the exercise of ordinary diligence might have known of it, no issue was presented as to her actual or constructive knowledge of its existence, and no instruction should have been given as to the degree of care required of one using a walk with knowledge that it was defective; and as the matter was one of the utmost importance under the circumstances of the case the giving of such an instruction was prejudicial error, not merely because it tended to confuse the jury and distract attention from the real issue, but because it suggested, and by implication permitted, a verdict against plaintiff upon a theory not tenable under the evidence. The judgment is reversed, and a new trial ordered. All the Justices concurring. Raymond v. Wichita. OSIE A. RAYMOND V. THE CITY OF WICHITA. SYLLABUS BY THE COURT. 1. HIGHWAYS-Prescriptive Rights-Ejectment-Estoppel. A strip of land 114 feet wide, adjacent to, but outside of, an incorporated city, was used by the traveling public for many years as a highway without objection from the owner of the soil. It was then brought into the city limits and its use as a street continued to the same extent as before. In an action of ejectment against the city by the owner of the fee to recover the land so used, it is held, that the change of the highway from a country road to a city street did not affect the rights which the public gained in the way of user, nor in any manner make the acquiescence in such use by the claimant less effective as an estoppel against him. 2. 3. Common-law Dedication-Evidence. Where a commonlaw dedication of a highway is asserted against an owner of land over which the highway runs, evidence that the governing authorities of a city laid sidewalks on each side of the road, established its grade, and otherwise improved it, without objection from the owner, although at the time it was beyond the city limits, is competent as tending to show an assertion by the public of rights of user over the traveled way adverse to the owner of the soil. Prescriptive Rights-Improper Restrictions. A street was laid out 114 feet wide. When it reached the city limits a road of the same width was used by the traveling public as a continuation of the street to gain access to, and egress from, a bridge over a river. A road 60 feet wide was established by the county commissioners from the bridge to the city limits, the length of the traveled way, but was never worked or improved by the county authorities. Public travel was not confined to the boundaries of the county road. Held, that the rights of the public were not restricted to the 60-foot strip by adverse user when it appeared that other portions of the strip 114 feet wide, out of which the 60-foot road was established, were for a long period continuously used as a highway to the same extent as the road laid out by the county. Error from Sedgwick district court; PRESTON B. GILLETT, judge pro tem. Opinion filed January 7, 1905. Affirmed. Raymond v. Wichita. STATEMENT. THIS was an action of ejectment brought by Osie A. Raymond to recover from the city of Wichita a strip. of land 54 feet wide by 431 feet long, being the north. 54 feet of what is known as Douglas avenue, in the city of Wichita, between Wichita street and Waco avenue. In 1871 William Griffenstein acquired land on the south of what is now the north line of Douglas avenue, and laid out Griffenstein's first addition to Wichita, which extended from Lawrence avenue on the east to Water street on the west, and on the north to the north line of Douglas avenue. Douglas avenue was dedicated to the public in this addition to the width of 114 feet between the streets mentioned. In 1872 Griffenstein platted his second addition, in effect extending the first addition 300 feet west. In this second addition he dedicated Douglas avenue on the plat to the use of the public, 114 feet wide and extending west to the middle of Wichita street in Waterman's addition to the city. West of Wichita street, and north of the tract of land marked "county road" on the map, is the tract in controversy. For a better understanding of the controversy reference is made to a map of the ground in dispute, on a scale much reduced from the one used on the trial. The land now claimed by the city as a part of Douglas avenue, embracing the tract marked "county road" on the map and the strip 54 feet wide north of it, between Wichita street and Waco avenue, about 600 feet long, was never platted. In 1886, by petition of the mayor and council to the judge of the district court, land south of Douglas avenue extended west was taken into the city, leaving the tract 114 feet wide and 600 feet long, within which is the land in dispute, out of |