Barnes v. Kansas City

• Citation: 63 S.W.2d 164
• Decision Date: 12 June 1933
• Docket Number: No. 17785.,17785.
• Parties: BARNES v. KANSAS CITY.
• Court: Court of Appeal of Missouri (US)

63 S.W.2d 164

BARNES v. KANSAS CITY.

No. 17785.

Kansas City Court of Appeals. Missouri.

June 12, 1933.

Rehearing Denied July 25, 1933.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by Ruby Barnes against Kansas City. Judgment for plaintiff, and defendant appeals.

Affirmed.

George Kingsley, City Counselor, and Lambert S. O'Malley and John J. Cosgrove, Asst. City Counselors, all of Kansas City, for appellant.

B. W. Boley, of Kansas City, for respondent.

TRIMBLE, Judge.

An action to recover damages caused by a fall upon an alleged negligently maintained and unsafe sidewalk. Plaintiff recovered a verdict and judgment for $3,250 against the city, and it has appealed.

It was alleged that on or about May 4, 1930, there was a high bank of earth along the south side of Fifty-Ninth street in Kansas City, Mo., at a place about 200 feet east of the intersection of Chestnut and Fifty-Ninth streets, and because of rains, wet, slick, and slimy mud had accumulated on the sidewalk along the south side of Fifty-Ninth street at said place above mentioned, which accumulation of mud was of such color as to be scarcely noticeable to the casual passer; that plaintiff, on that date, a stranger in Kansas City and unacquainted with the condition of said street, was traveling in a western direction on said sidewalk, stepped into said mud so accumulated, and was thereby caused to slip and fall violently to the sidewalk and receive a severe injury to plaintiff's left kneecap and her back, spine, and spinal column, permanently affecting the use thereof.

The negligence charged is: "That defendant carelessly and negligently failed to maintain the sidewalk at the place where plaintiff was injured in a reasonably safe condition for traveling by the public, including this plaintiff; that defendant carelessly and negligently permitted wet, slick and slimy mud to accumulate, be and remain upon said sidewalk, thereby rendering it unsafe for travel by the public in general and this plaintiff in particular; that said accumulation of wet, slick and slimy mud and dangerous condition thereby created had been in existence for a long period of time prior to plaintiff's injuries, to-wit, several weeks; that defendant knew or by the exercise of ordinary care could have known of all the foregoing facts and conditions in time by the exercise of ordinary care to have repaired and remedied said conditions before the time of plaintiff's injuries but carelessly and negligently failed to do so."

The defendant answered with a general denial together with a plea of contributory negligence in this that plaintiff negligently failed to use her eyes and senses in selecting the course which plaintiff was pursuing and negligently failed to use her eyes and senses in the use of such course.

At the close of the evidence in plaintiff's behalf, and likewise at the close of all the evidence, defendant prayed instructions directing the jury to find for the defendant. Being overruled, and verdict and judgment going against the city, it has appealed.

The evidence disclosed that plaintiff, Mrs. Ruby Barnes, was residing at Hale, Mo., and had been there for eight years prior to her injury; and on the day she was hurt she was visiting her relatives, father, mother, and sister, in Kansas City, Mo. It was 11 o'clock on Sunday morning, and plaintiff was walking west at the place in question, with her brother-in-law, Allen Cardwell. It was a bright day; before they reached the place where she fell she had not experienced any other difficulty on the sidewalk. Plaintiff had not observed any mud on the sidewalk before she slipped. The record of her testimony continues: "Q. Now, in your own way Mrs. Barnes, go ahead and tell the jury just what happened there. A. Well, as I said, I had left Agnes going south on Fifty-ninth Street. My intentions were going to this ice house. My brother and I were going there of course talking, carrying on a conversation, and as I said, with my natural way of walking, walking erect and going down hill, the walk sloped there on an incline and I didn't notice this place and I even didn't notice it when I got to it because it didn't look muddy. The soil was kind of a slate color and I didn't have any warning whatever until I stepped into it. It was done so quick. I slipped with this foot first. I was on the south side of the walk nearest to the bank and that foot slipped and I tried to catch myself with the other foot and it slipped forward, throwing the other foot and it slipped forward, throwing this left foot back under me, clear back under me."

Cross-examination:

"Q. Mrs. Barnes, at the time you fell, was Mr. Cardwell on the sidewalk or out in the parking to the north of the sidewalk? A. You mean when I fell?

"Q. Yes, ma'am. A. Well, I was under the impression that he stepped out of this mud. You see the mud goes this way (indicating) across the walk.

"Q. Just let me get at it. What I am trying to find out is, at the time you fell whether he was still on the sidewalk or whether he was over on the parking, north of the sidewalk and off of the sidewalk. A. He wouldn't have been to the mud at the same time I would because as I started to see it, it slanted across the walk this way (indicating).

"Q. Can you answer my question? A. I say, I was under the impression he had stepped off of the walk.

"Q. So that if I understand you correctly then when you fell, Mr. Cardwell had already stepped off of the walk? A. That is what I thought.

"Q. All right. And he was to your right, is that right? A. Yes, sir; this side (indicating).

"Q. It would be to the — A. (Interrupting) The north side.

"Q. The north side? The north side of the walk? A. Yes, sir.

"Q. Now that street slopes to the west some, does it not? A. Yes.

"Q. Down hill from east to the west? A. Yes.

"Q. So that you were walking somewhat down grade? A. Yes, sir.

"Q. And as I understand you to testify in response to Mr. Boley's question, you didn't see this condition on the walk until you had stepped into it? A. No, sir.

"Q. And when you were slipping, found yourself in the act of slipping, that was the first you knew that there was something unusual on the walk? A. Yes, sir; that is to the effect it was mud. I seen the dirt there, but I didn't think about it being slick." (Italics ours.)

It was sought to make plaintiff say on further cross-examination that she never saw "any condition on the walk" before she stepped into it that was out of the ordinary; also that she walked along with her "head erect" and for that reason did not see or observe what she was getting into until she slipped and fell; but her testimony discloses that she went in her "general way of walking." In the course of this cross-examination she said the dirt on top did not seem muddy. "It was a kind of a slate, stone color." The substance and effect of this testimony, however, is that, while she did not go along with her eyes glued to the ground watching to see the condition of the dirt, she walked along naturally and saw the dirt, but from its color it looked like...