Barker v. City of Jefferson

• Citation: 137 S.W. 10,155 Mo.App. 390
• Parties: WILLIAM E. BARKER, Respondent, v. CITY OF JEFFERSON, Appellant
• Decision Date: 01 May 1911
• Court: Court of Appeals of Kansas

137 S.W. 10

155 Mo.App. 390

WILLIAM E. BARKER, Respondent, v. CITY OF JEFFERSON, Appellant

Court of Appeals of Missouri, Kansas City

May 1, 1911

Appeal from Cole Circuit Court.--Hon. William H. Martin, Judge.

Judgment affirmed.

W. J Edwards and Hazell, Edwards & Lay for appellant.

Silver & Dumm for respondent.

OPINION

ELLISON, J.

Plaintiff was injured by falling while walking upon one of defendant's sidewalks on High street, and instituted this action for damages alleged to have resulted from the fall. He recovered judgment for $ 450.

There was evidence tending to show that the sidewalks were rough with ice and snow. Plaintiff, who was a one-legged man who used a crutch, testified that the walk was "full of snow and drifts and ice and sleet;" and that he fell by reason of his foot striking a ridge or drift of frozen snow and ice from four to six inches high which ran across the walk; and that the sidewalks had been in the same condition for more than a week.

The evidence showed knowledge on defendant's part of the dangerous condition of the walk, or of its condition being dangerous for a time sufficient for it to have known the condition and cleaned the walk. It also showed that notwithstanding plaintiff had only one leg and walked with a crutch, he used the care that a prudent person in his physical condition should exercise, and the case was properly submitted to the jury by instructions requiring a belief of these things before a verdict could be rendered against the city.

While there was a general condition of ice and snow over the entire city, yet there was abundant evidence tending to show that at the place where plaintiff fell the street did not present that usual condition resulting from a general fall of snow or sleet. Snow and ice, frozen together, were allowed to form and remain in a ridge across the walk, dangerous to pedestrians and thus bringing the case fully within the rule of municipal liability stated by the Supreme Court. [Reno v. City of St. Joseph, 169 Mo. 642, 70 S.W. 123; Quarles v. Kansas City, 138 Mo.App. 45, 119 S.W. 1019; Quinlan v. Kansas City, 104 Mo.App. 616, 78 S.W. 660.]

The instructions for defendant called the attention of the jury to every phase of defense which the evidence justified. The jury was cautioned by these instructions that no dangerous condition which arose from sleet and ice on the walks would render defendant liable unless it had allowed snow and ice to "accumulate in uneven and irregular masses or ridges." So the jury were fully instructed on the matter of plaintiff's contributory negligence as charged by defendant. There were several instructions offered by defendant which were refused. But, as already stated, enough were given to fully enlighten the jury on every proper issue.

It is claimed that there was no evidence that High street was a street in the defendant city. But an examination of the record shows that there was. It was not evidence affirmatively in response to a direct question as to the street being...