166 S.W. 343 (Mo.App. 1914), Robinson v. Kansas City

Citation:166 S.W. 343, 179 Mo.App. 211
Opinion Judge:JOHNSON, J.
Party Name:JOHN Q. ROBINSON, Respondent, v. KANSAS CITY, MISSOURI, and THE PARKER-WASHINGTON COMPANY, Appellants
Attorney:A. F. Evans, Jas. W. Garner, Hunt C. Moore and Ball & Ryland for appellants. Botsford, Deatherage & Creason for respondent.
Case Date:April 06, 1914
Court:Court of Appeals of Missouri
 
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Page 343

166 S.W. 343 (Mo.App. 1914)

179 Mo.App. 211

JOHN Q. ROBINSON, Respondent,

v.

KANSAS CITY, MISSOURI, and THE PARKER-WASHINGTON COMPANY, Appellants

Court of Appeals of Missouri, Kansas City

April 6, 1914

Appeal from the Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

REVERSED.

Judgment reversed.

A. F. Evans, Jas. W. Garner, Hunt C. Moore and Ball & Ryland for appellants.

Botsford, Deatherage & Creason for respondent.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages he sustained in consequence of personal injuries to his wife which he alleges were caused by negligence of defendants in failing to guard an embankment and excavation in one of the public streets of Kansas City which had been recently graded by the defendant The Parker-Washington Company under contract with the defendant city. Separate answers were filed, each containing [179 Mo.App. 212] a general denial and a plea of contributory negligence. At the close of plaintiff's evidence the court sustained demurrers to the evidence offered by the respective defendants whereupon plaintiff took an involuntary nonsuit and afterward the court sustained his motion to set it aside and ordered a new trial. Both defendants appealed.

The injury occurred about eight o'clock p. m.,

Page 344

November 3, 1906, at the intersection of Brighton avenue and Twenty-third street, a locality in a remote residence district of the city. Brighton avenue runs north and south, Twenty-third street, east and west, the platted width of the latter street being sixty feet. There were numerous residences in the vicinity, but neither street had been graded until several months before the date of the injury when the city had caused Brighton avenue to be graded to the established grade from Twenty-third street south. The established grade at the intersection was six feet below the natural surface, and the contractor had extended the grading far enough into the intersection to enable him to cut a narrow approach in Twenty-third street to the crossing. Shortly after this work was done, the city let the contract to The Parker-Washington Company to grade Brighton avenue north from Twenty-third to Twentieth street to the established grade. The contract contained the provision: "Approaches to all intersecting streets and alleys shall be graded under this contract whenever and in whatever manner...

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