Banty v. City of Sedalia
| Decision Date | 27 June 1938 |
| Docket Number | No. 19213.,19213. |
| Citation | 120 S.W.2d 59 |
| Court | Missouri Court of Appeals |
| Parties | BANTY v. CITY OF SEDALIA et al. |
Appeal from Circuit Court, Saline County; Charles Lyons, Judge.
"Not to be published in State Reports."
Action by Icey Banty against the City of Sedalia, Mo., a municipal corporation, and the Sedalia Water Company, a corporation, to recover for injuries sustained in stepping into a hole surrounding a water meter box. From a judgment for plaintiff, defendants appeal.
Judgment reversed as to the Sedalia Water Company, and affirmed as to the City of Sedalia.
Fred F. Wesner and J. T. Montgomery, both of Sedalia, for appellants.
Palmer & Palmer, of Sedalia, and Johnson & Bacon, of Marshall, for respondent.
CAMPBELL, Commissioner.
This action was commenced in the circuit court of Pettis county, sent to the circuit court of Saline county on change of venue where it was tried with a jury. The verdict and judgment were for the plaintiff against both defendants in the sum of $1,000. The defendants have appealed.
The evidence shows plaintiff, while walking across a parkway in a public street in the defendant city, stepped into a hole surrounding a water meter box, fell and was injured. The hole was approximately 4½ feet wide, 7 inches deep, and had existed for several months prior to the accident.
Further pertinent evidence will be stated in the course of the opinion.
The negligence charged against the defendant city was that it failed to exercise reasonable care to maintain the parkway in a reasonably safe condition for travel thereon, in that it permitted the water meter box to be maintained below the level of the grade of the parkway, thus causing the hole into which plaintiff fell.
The negligence alleged against the defendant water company was that it installed, maintained and controlled the water meter box in a dangerous and unsafe condition, in that the meter box was 7 inches lower than the grade of the parkway, in violation of ordinance No. 74 of the defendant city.
The defendant water company at the close of the evidence requested the court to direct verdict in its favor. The request was refused and said defendant assigns error to the ruling. In support of its claim of error defendant says there was no evidence showing that it was under duty to install, repair or maintain the water meter box, and that ordinance No. 74 was repealed by ordinance No. 717. Section 1 of Ordinance No. 74, passed October 25, 1895, follows:
"Whoever shall own or control as tenant or otherwise any water meter placed in any street or alley of this City shall keep the top of the box surrounding the same level with the top of the grade as it is in use in the street or alley in which the same may be at the time, and shall keep the same well covered by and with an iron cover of the thickness of the covers of manholes and sewers in this City, and the same shall be made and kept so as to fit down well and remain firmly on the box and not be allowed to get off or be out of repair."
Ordinance No. 717, passed August 6, 1906, expressly repealed certain ordinances and provided as follows:
The water company owned the meter which was installed in the water meter box and it is therefore plain the provisions of ordinance No. 74 required the water company to maintain the top of the meter box on a level with the grade of the parkway.
The water meter box in question was installed subsequent to the passage of ordinance No. 717. That ordinance provided the meter shall be owned and kept in repair by the water company; that the consumer "shall put in, maintain and repair the meter box" under the supervision of the water company; and that all ordinances in conflict therewith were repealed.
There is conflict in the ordinances in the following particulars: Ordinance No. 74 allowed the property owner or his tenant to own the meter and required the owner or the one in control of the meter to keep the top of the meter box on a level with the street, thus casting upon the owner of the meter, whether the water company or another, the duty of maintaining the top of the meter box on a level with the grade of the street. Ordinance No. 717 inhibited any person, save the water company, from owning a water meter and provided it was the duty of the consumer to "put in, maintain and repair the meter box", thus relieving the water company of any duty to install or repair the meter box.
In the case of Fisher v. St. Joseph Water Co., 151 Mo.App. 530, 132 S.W. 288, the plaintiff "stumbled over" a meter box which freezing of successive winters had elevated "four or five inches above the path, and there it remained an obstruction in the way of unwary pedestrians." [page 289.] The court held the plaintiff was not entitled to recover for the reason the box belonged to the property owners in front of whose property the box was installed.
In the case of Goldsmith v. City of Kennett, Mo.App., 78 S.W.2d 146, the plaintiff stepped into an unguarded water...
To continue reading
Request your trial
-
Garrard v. State Dept. of Public Health and Welfare
...and Dr. Palenske's testimony was not [contrast Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647(6); Banty v. City of Sedalia, Mo.App., 120 S.W.2d 59, 61(1)], it should be considered as a whole. Dimond v. Terminal R. R. Ass'n. of St. Louis, 346 Mo. 333, 353, 141 S.W.2d 789, 799(12); Ha......
-
Wendegatz v. Kansas City Gas Co.
... ... Clader v ... City of Neosho, Mo.App., 198 S.W.2d 523; Little v ... Kansas City, Mo.App., 197 S.W.2d 1005; Banty v. City ... of Sedalia, Mo.App., 120 S.W.2d 59; Huffman v. City of ... Hannibal, Mo.App., 287 S.W. 848 ... ... Defendant ... ...
-
Wendegatz v. Kansas City Gas Co.
...as a matter of law. Clader v. City of Neosho, Mo.App., 198 S.W.2d 523; Little v. Kansas City, Mo.App., 197 S.W.2d 1005; Banty v City of Sedalia, Mo.App., 120 S.W.2d 59; Huffman v. City of Hannibal, Mo.App., 287 S.W. Defendant charges error in plaintiff's instruction No. 1 on the theory that......
- Banty v. City of Sedalia