Adams v. Kansas City
| Decision Date | 05 April 1954 |
| Docket Number | No. 21986,21986 |
| Citation | 266 S.W.2d 771 |
| Parties | ADAMS v. KANSAS CITY. |
| Court | Missouri Court of Appeals |
David M. Proctor, Henry Arthur and T. James Conway, Kansas City, for appellant.
Jensen, West & Cochrane, William W. Cochrane, Jr., Richard C. Jensen, Kansas City, for respondent.
Respondent, the plaintiff, brought this action to recover damages for personal injuries and obtained a verdict and judgment for $4500. Defendant has appealed.
No error is here raised as to the pleadings, the evidence, or the amount of the verdict. Briefly, the facts are that on March 20, 1951, at about 5:00 p. m., the plaintiff, a woman 50 years of age and employed as a nurse at a nursing home on the east side of Main Street, just north of 36th Street in Kansas City, Missouri, walked across the street from her place of employment to a concrete safety zone or island situated west and alongside of the southbound street car tracks, preparatory to boarding a southbound street car at that point which would take her to or near her home. The street car was approaching from the north and she had ample time to reach the safety zone. She had many times boarded the street car from this zone, but always near the south end which she would reach by crossing at the intersection. She had never noticed the crack in the concrete which caused her to fall. From the evidence the concrete platform or safety zone appeared to be about five inches high, three or four feet wide, and about the length of an average street car. At the north end there was a thick concrete block or abutment three or four feet high, from the bottom of which ran a triangular concrete slab northward to turn the traffic around the safety zone.
Stepping upon the concrete safety zone or platform a few feet from its north end and seeing the car approaching, the plaintiff started to walk southward on the platform and feeling something brush her right leg, she looked down and saw a small dog which had followed her from the nursing home across the street. She turned slightly to the right when she saw the dog and in doing so she moved her right foot slightly and stepped into a wedge-shaped hole or crack in the concrete surface of the safety zone, throwing her backward off the concrete and causing her to land on her back on the street between the platform and the street car, which had by that time stopped at the loading zone. The wheels of the street car did not touch her, but she received serious injuries as described in the evidence. At the time of the accident plaintiff was wearing flat-heeled Oxford shoes as used by nurses. The crevice into which she stepped was about four or five inches wide and about two inches deep and near the east or street car side of the platform surface. There were other cracks and holes in the platform and evidence of previous repairs in the concrete, shown in photographs introduced.
Defendant's first assignment of error is that the court erred in overruling its motion for a directed verdict at the close of plaintiff's evidence and at the close of all the evidence. As to such motion made at the close of plaintiff's evidence, any error made in overruling the same was waived by defendant by introducing evidence thereafter in the case. Ellis v. Kansas City Public Service Co., Mo.App., 203 S.W.2d 475.
The ground assigned for error in overruling the motion for a directed verdict at the close of all the evidence is that the maintenance of the safety island in evidence was a governmental function of the city, in the performance of which it was not liable for negligence. The thoery advanced by the defendant is that the safety zone where plaintiff fell was a traffic device designed to divert traffic to the right or to the left of the place reserved for pedestrians to board or to alight from street cars. The maintenance of such device, it is urged, was the exercise of a governmental function of the city. Several decisions of our Supreme Court are cited by defendant to support this contention.
Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778, cited by defendant, was a case in which automatic signal lights maintained by the city to direct traffic at an intersection of two streets were out of repair and failed to operate properly causing plaintiff to proceed south across a street intersection and collide with a vehicle crossing the street at the same time from the east. The distinction between governmental functions and corporate functions of municipalities is there exhaustively treated and explained. The Supreme Court en banc held that the city was not liable for the negligence complained of since the alleged liability grew out of the direction of traffic on the public streets, a duty owed to the public generally as an attribute of its sovereignty and not relating to its special or private corporate purposes which are not accomplished through its public officers, as such, but through its agents and employees.
Again, in Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32, the plaintiff's basis for a claim of negligence, among others, was the placing and maintaining of a black line on the paved street, which line caused the driver of the car in which she was riding to follow it and over a curb onto a parking space where he collided with a steam shovel there located. The court held that the collision was not caused by any imperfection in the pavement itself, but was due to the...
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Wilson v. White
...introduced evidence on the merits [Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 607(12); Adams v. Kansas City, Mo.App., 266 S.W.2d 771, 772(1); Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770, 771(3)], and we here consider only the motion for a directed verdict at th......
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Hiltner v. Kansas City
...5; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Metz v. Kansas City, Missouri, 229 Mo.App. 402, 81 S.W.2d 462; and Adams v. Kansas City, Mo.App., 266 S.W.2d 771. These cases all properly hold that a city is liable in tort for its failure to maintain its streets in a reasonably safe cond......
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Kaiser Aluminum & Chemical Sales, Inc. v. Lingle Refrigeration Co.
...by defendant when it subsequently introduced evidence on the merits of the case. Wilson v. White, Mo.App., 272 S.W.2d 1; Adams v. Kansas City, Mo.App., 266 S.W.2d 771; Ellis v. Kansas City Public Service Co., Mo.App., 203 S.W.2d Defendant contends that plaintiff's petition improperly pleade......
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Chvala v. DC Transit System, Inc.
...to a failure to comply with the maintenance, marking, or lighting requirements of an Act of Congress. 1 Cf. Adams v. Kansas City, 266 S.W.2d 771, 773 (Mo.App.1954). 2 It is clear that the relief of traffic congestion was a factor in the thinking of those concerned with the problem in view o......