Allen v. Kansas City

• Decision Date: 06 November 1933
• Docket Number: No. 17659.,17659.
• Citation: 64 S.W.2d 765
• Parties: ALLEN v. KANSAS CITY.
• Court: Missouri Court of Appeals

64 S.W.2d 765

ALLEN v. KANSAS CITY.

No. 17659.

Kansas City Court of Appeals. Missouri.

November 6, 1933.

Appeal from Circuit Court, Jackson County.

"Not to be published in State Reports."

Action by A. K. Allen against Kansas City and others. From a judgment in favor of plaintiff, named defendant appeals.

Reversed and remanded.

George Kingsley, James M. Larkin, and John J. Cosgrove, all of Kansas City, for appellant.

J. B. McGilvray and J. K. Owens, both of Kansas City, for respondent.

CAMPBELL, Commissioner.

Plaintiff, on the night of February 19, 1929, while walking upon a public sidewalk in defendant city, slipped, fell, and was injured. Thereafter he brought this action to recover damages therefor, had a verdict and judgment in the sum of $3,000. Defendant appeals.

Plaintiff claims that he was caused to fall upon rough and uneven ridges and ropes of ice then on the sidewalk, formed by water running thereon from water pipes on premises owned by Robert Wear and June Wear.

The defendant contends that there was no evidence tending to show that water escaped from a pipe on the Wear property and flowed therefrom to the sidewalk, and hence its request for directed verdict should have been sustained.

Plaintiff introduced evidence tending to show that beginning about Christmas, 1928, water flowed from a pipe on the Wear property "and it trickled down" a driveway and ran down upon the sidewalk "and froze there in front of the house the full length of our sidewalk."

Plaintiff's son testified that there was ice upon the sidewalk on February 19; that it was rough, "thawed and rounded down and it had ripples in it"; that the condition was present for a month or more before February 19; that that condition did not prevail generally in the neighborhood at the time; that the only ice in that vicinity was the ice "upon this spot."

Defendant's witness, L. A. Fergeson, who lived on premises adjoining the Wear property, testified as follows:

"Q. Now you say that there was ice on your sidewalk? A. Yes, sir.

"Q. And while you were there it accumulated there to such an extent that your wife had to get a hatchet and chop it off and you took a hatchet and chopped it off, in fact you chopped it off four times? A. Yes.

"Q. And that was caused by reason of this pipe leaking back there running on your sidewalk and it would run on there and freeze as you stated yesterday in ripples, isn't that right? A. Yes, sir.

"Q. And that all came from this property of the Wears? A. Yes, sir."

Defendant's witness, a plumber, testified that shortly before Christmas of 1928 he went to the Wear premises, saw the pipe, but did not repair it until the latter part of February.

Manifestly, there was substantial evidence tending to show that the ice upon which plaintiff fell was formed from water which flowed from a pipe on the Wear property.

The defendant insists that plaintiff's instruction No. 1 was erroneous for the following reasons: (1) There was no evidence of service of notice of injury or filing of suit; (2) the instruction enlarges the duty of the city in respect to maintaining its sidewalks, and assumes that the walk was not reasonably safe; (3) permitted recovery by plaintiff "if the icy condition caused him to fall," and does not submit the issue as to whether or not the "icy condition of the sidewalk was negligence."

In regard to the notice of injury, the record reveals that plaintiff served written notice, the sufficiency of which is not questioned, upon the mayor of defendant city on April 18, 1929, that the mayor indorsed acknowledgment of service thereon on that date, and that the petition was filed April 7, 1929. There is, therefore, no basis for the criticism of the instruction relating to notice and filing of suit.

The instruction does submit to the jury the question as to whether or not the sidewalk was dangerous. The instruction told the jury that plaintiff was not entitled to a verdict unless it found that the walk was covered with rough and uneven ropes and ridges of ice, and that the plaintiff, when passing over said walk, and while exercising due care, was caused to fall on account of said icy condition. In event rough and uneven ropes and ridges of ice caused plaintiff to fall at a time and when he was exercising due care, the jury was warranted in finding that the sidewalk was not reasonably safe for the use of pedestrians.

The claim that the instruction enlarged the duty of the city in respect to the care required in maintaining its sidewalks is well founded. That part of the instruction reads: "And that said condition was known * * or by the exercise of ordinary care * * * should have been known, in time for defendant to have made said condition reasonably safe before plaintiff was injured. * * *"

The specific objection to the quoted part of the instruction is that it did not require the jury to find that defendant, after it knew, or could have known, of the defective condition of the walk, had reasonable time to remove the obstruction.

In the case of Pearce v. Kansas City, 156 Mo. App. 230, 137 S. W. 629, 630, the court held that an instruction which told the jury that, if defendant "knew, or by the exercise of reasonable care could have known, of such alleged defective and dangerous condition * * * in time to have repaired the same, * * * then your verdict should be for the plaintiff," was reversibly erroneous, for the reason that it failed to allow the municipality a reasonable time in which to remove "the obstruction after receiving" notice thereof.

The defendant was entitled, as a matter of law, to a reasonable time after it obtained knowledge, actual or constructive, of the dangerous condition of the sidewalk in which to repair the condition, and it was not liable until it had neglected such opportunity. Baustian v. Young, 152 Mo. 317, 53 S. W. 921, 75 Am. St. Rep. 462; Gerber v. Kansas City, 105 Mo. App. 191, 79 S. W. 717.

The instruction did not tell the jury that defendant was entitled to a reasonable time after notice in which to remove the obstruction, and for that reason was erroneous. The instruction does not assume that the icy condition of the sidewalk caused plaintiff to fall, but submitted that question to the jury.

Error is assigned to the failure of the court to discharge the jury upon defendant's motion. This insistence is based on the following: "Q. Did you have occasion to notice the condition of the walks along in front of the houses between 3748, where the Wears lived; did you know the Wears? A. I most certainly did, because my son and I both fell on the ice."

Defendant's counsel requested the court to strike the answer and to discharge the jury. The court struck the answer and instructed the jury to disregard it, but refused to discharge the jury. We have not been cited to a case in which it was held that an improper answer of a witness to a proper question is sufficient to permit, much less imperatively demand, that the court order a mistrial. The assignment is disallowed.

For the error appearing in instruction No. 1, the judgment is reversed and the cause remanded.

REYNOLDS, C., concurs.

PER CURIAM.

The foregoing opinion by CAMPBELL, C., is adopted as the opinion of the court by BLAND, J., and by TRIMBLE, J., in a separate opinion. Judge SHAIN dissents in a separate opinion. The judgment is reversed, and the cause remanded.

TRIMBLE, Judge.

I vote to adopt the opinion of Commissioner CAMPBELL in this cause for the following reasons:

First, there was substantial evidence that no water escaped from the pipes on the Wear property after the 1st day of January preceding the accident. Although the evidence favorable to plaintiff to the effect that water did escape from a pipe on the Wear premises was uncontradicted, the question was nevertheless for the jury. Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 968, 971, 47 S. W. 907, 43 L. R. A. 505.

The allegation of negligence that the surface conditions at the locus in quo caused rainfall and melting snow to be deposited upon the sidewalk was not submitted in plaintiff's instructions. Hence the alleged negligence in that respect was abandoned and cannot be considered here, though there was evidence sustaining the allegation.

Notice to the city of the obstruction and reasonable time thereafter to repair it was an indispensable element of plaintiff's case, absent which she was not entitled to a verdict. Such question was not submitted in the instruction.

SHAIN, Presiding Judge.

I cannot agree with my learned brothers in the conclusion reached in this case.

My disagreement is based entirely upon the conclusion reached in the majority opinion to the effect that the giving of instruction No. 1, given on behalf of plaintiff, constituted reversible error.

The conclusion reached in the majority opinion is based upon the following language used in the instruction, as follows: "And if you further find from the evidence that said condition, if you find said condition to have existed, had existed for a period of time prior to the 19th day of February, 1929, and that said condition was known to the officers, agents or representatives of said Kansas City, or by the exercise of ordinary care on the part of said Kansas City, its officers, agents and representatives, should have been known, in time for defendant to have made said condition reasonably safe before plaintiff was injured. * * *"

Concerning said language, the majority opinion holds that the instruction enlarged the duty of the city in respect to care required in maintaining its sidewalks.

The opinion contains the following: "Manifestly, there was substantial evidence tending to show that the ice upon which plaintiff fell was formed from water which flowed from a pipe on the Wear property."

The majority opinion is based upon the opinion in Pearce v. Kansas City, 156 Mo. App. 230, 137 S. W. 629.

In the Pearce Case it appears that the city had placed a board...