Barr v. Kansas City

• Decision Date: 25 May 1891
• Citation: 16 S.W. 483,105 Mo. 550
• Parties: BARR v. KANSAS CITY.
• Court: Missouri Supreme Court

16 S.W. 483

105 Mo. 550

BARR v. KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

DEFECTIVE STREETS — NOTICE OF CITY — CONTRIBUTORY NEGLIGENCE.

1. The cover of a man-hole fell to the bottom of a sewer. The hole was left open, and a week afterwards plaintiff fell into it while crossing the street. In a suit against the city, the court charged that it was guilty of negligence if it suffered the hole to remain without cover, knowing that it was open, or where, by the exercise of ordinary care, it might have known it. Held, that the instruction was not open to the objection that it left out of consideration the question whether the city had time to repair the defect after it was chargeable with notice.

2. The fall of the cover having been the natural result of defects in its original construction by the city, it was chargeable with notice from the beginning, and was under a continuing duty to repair.

3. The court charged that, if plaintiff had no reason to suppose that the street was unsafe, the jury could not find her guilty of contributory negligence from the fact alone that she was running when she fell into the hole, or that her attention was attracted to some other object, so that she did not notice where she was stepping. Held, that the instruction was misleading, and liable to induce the jury to ignore the facts referred to, when they considered the question of contributory negligence.

4. Though, by the exercise of ordinary care, plaintiff might have known that the hole was there, and though she was running when she fell into it, this was not negligence per se.

5. In a suit by a married woman for personal injuries, where the petition does not demand damages for medical attendance and loss of time, and no evidence in relation thereto is introduced, it is not error to refuse to charge that she cannot recover such damages.

6. In a suit against a city for an injury resulting from a defect in a street, the size of the city, and the extent and number of its streets, is not a proper subject for consideration, in determining whether it was negligent.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

R. L. Yeager, for appellant. Warner, Dean & Hagerman, for respondent.

BRACE, J.

Action for personal injuries, in which plaintiff recovered a judgment in the Jackson circuit court against Kansas City for $10,000, from which defendant appeals. The material averments of the petition are as follows: That on the 3d day of July, 1887, and long prior thereto, Campbell street, between Sixth and Eighth streets, in said city, had been open for travel, and generally used by the public as a street. That under said Campbell street, at a point about opposite to where the alley between Seventh and Eighth streets intersects said Campbell street, there was a sewer previously built, and then, and for a long time prior thereto, maintained by said defendant. That at a point on said Campbell street over said sewer, and near the intersection of said alley and said Campbell street, and on the west side of said Campbell street, the said defendant, in constructing said sewer, left an opening for access to said sewer, and the defendant had provided a covering or grating for said opening, which was designed and intended, if it had been suitably constructed, and of suitable dimensions, and sufficiently fastened, to cover said opening so as to permit travel of all kinds over the same as upon any other part of said street. The defendant, in providing said covering to said opening in said sewer, negligently failed to provide a covering of sufficient dimensions, and the cover which the said defendant provided was about one and one-fourth inches too short, and about three-fourths of an inch too narrow, to properly fill said opening. The defendant provided bearings for said cover to rest on each side of said opening, but negligently and carelessly failed to provide bearings at the ends of said opening. That, by reason of the negligence of the defendant in providing an insufficient covering for said opening, and insufficient bearings on which the same should rest, the cover provided by defendant fell down, and into said sewer, and left the said sewer open. That the open place so left in said sewer was about three feet and one inch in length and one foot and four inches in width. That, after the said cover fell into said sewer, the said sewer was, through the negligence and carelessness of defendant, left open on July 30, 1887, and for many days next preceding that day, and after the defendant knew, or by the exercise of ordinary care might have known, that the same was open, dangerous, and unsafe, and liable to cause injury to those passing along and over said street. That defendant carelessly and negligently left said opening unguarded, and negligently failed to give any signal or warning to those passing along or over said street of the opening in said sewer and of the danger from said open sewer. That on or about the 30th day of July, 1887, plaintiff, Carrie A. Barr, was passing along said Campbell street, and, while in the exercise of ordinary care upon her part, stepped into said opening, and fell into said sewer, and was greatly wounded, bruised, and injured. The petition then sets out particularly the injuries she received, alleges damage by reason thereof in the sum of $20,000, for which plaintiff asks judgment. The answer was a general denial and a plea of contributory negligence. It was shown by the plaintiff by evidence which was uncontradicted that the construction of the covering of the man-hole into which plaintiff fell and its support was defective, as charged in the petition, and that by reason thereof a hack passing over it about 7 o'clock on Sunday evening, July 24th, caused the covering to be displaced and fall to the bottom of the hole; that the hole, which was about seven feet deep, remained uncovered, with the cover lying at the bottom thereof, from that time until the morning of the 30th of July, when the plaintiff fell into it. Campbell street is a public traveled street, running north and south, with sidewalks on each side. This hole was in that street about two feet from the west sidewalk, in plain view, and within the line of an alley that crossed it running east and west. Mrs. Barr lived in the house next to the house on the south-west corner of said street and alley, both houses fronting on the street. It appears from the evidence that, between 6 and 7 o'clock on the morning of the 30th of July, Mrs. Barr, for the purpose of employing the service of a negro woman who lived on the alley east of Campbell street, went out of the rear of her house into the yard, thence into the alley, thence east on the alley to the street, crossed the street, and having gone to the woman's house in the alley, and transacted the business she had with her, was returning hastily across the street to her home, when she fell into the hole, and received the serious injuries of which she complains. In crossing Campbell street the first time, Mrs. Barr must have passed within a few feet of the open hole, and there is some evidence tending to prove that upon another occasion she was near enough to have seen the hole open. She testifies, however, positively that she never knew of the hole until she fell in it. There was evidence also tending to show that she was running across the street when she fell, and that just before and at the time she fell she was looking south towards Eighth street, her attention being attracted in that direction by seeing a person whom she supposed to be her servant girl. The assignments of error urged here for reversal of the judgment are that the court erred in giving instructions 1 and 2 on behalf of the plaintiff, and in refusing to give instructions Nos. 2, 3, and 8 on behalf of the defendant.

1. Instruction No. 1 for plaintiff is as follows: "Under the law, the City of Kansas, the defendant herein, is charged with the duty of maintaining its streets and alleys in reasonably safe condition, so that those having occasion to use them may do so in safety. It was the duty of the defendant to keep Campbell street in a reasonably safe condition at the point covered by the hole in question, by providing a reasonably safe and sufficient covering for said hole, and by keeping the said hole covered. If the defendant failed to provide a covering for said hole reasonably safe and sufficient, in consequence of which the covering fell into the hole, leaving the same uncovered and unprotected, then such an act on the part of the city was negligence. [Or, if the defendant suffered the said hole to remain without cover after knowing the same was open, or when, by the exercise of ordinary care, the defendant might have known that said hole was open, then such act of the defendant was negligence.] And if you shall believe from all the evidence in this case that the plaintiff, while in the exercise of ordinary care, fell into the hole on Campbell street while attempting to...