Atchison v. City of St. Joseph

• Decision Date: 16 November 1908
• Parties: ATCHISON v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

113 S.W. 679

133 Mo. App. 563

ATCHISON v. CITY OF ST. JOSEPH.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. TRIAL (§ 252)—INSTRUCTIONS AGAINST EVIDENCE.

In an action for injury caused by plaintiff's vehicle striking the end of a girder, which separated the railway of a viaduct from the sidewalk, an instruction based on plaintiff's ignorance of the location of the girder was properly refused, where she knew as much about it as any one could know without taking measurements.

2. TRIAL (§ 251)—INSTRUCTIONS—UNAUTHORIZED HYPOTHESIS.

An instruction, in an action for injury on a viaduct, was properly refused, where it authorized recovery if the viaduct was not reasonably safe for travel, though lights were burning, where the petition relied on the fact that no lights were burning.

3. MUNICIPAL CORPORATIONS (§ 692)—STREETS —OBSTRUCTIONS.

The general rule that a city cannot maintain, nor permit, obstructions in a street, does not apply to permanent obstructions incident to public necessities, such as telegraph or telephone poles, supports for viaducts, etc.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Personal injury action by Nannie Atchison against the city of St. Joseph. From an order granting a new trial on verdict for defendant, defendant appeals. Reversed and remanded, with directions.

W. B. Norris and O. E. Shultz, for appellant. John S. Boyer, for respondent.

ELLISON, J.

Plaintiff was injured by being thrown from a buggy while driving over a viaduct maintained by the defendant city along and as a part of one of its streets. She brought this action for damages. The verdict was for the defendant. The trial court granted plaintiff a new trial, and defendant appealed from that order.

The reason assigned by the court for ordering a new trial was that it considered it had committed error in refusing instructions Nos. 5 and 6, offered by the plaintiff. We think those instructions were properly refused. The evidence shows the viaduct consisted of a roadway of ample width, and that on either side there was a sidewalk space of about six feet. Those sidewalk spaces were protected on the outside by a railing extending from down along the street before the viaduct was reached, and were separated from the roadway on the viaduct by a part of the structural iron work or large girder rising out of the floorway of the bridge or viaduct a height of more than two feet. This extended the full length of the bridge and at...