Berry v. City of Sedalia

• Decision Date: 07 April 1919
• Docket Number: No. 13214.,13214.
• Citation: 212 S.W. 34,201 Mo. App. 436
• Parties: BERRY v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

212 S.W. 34

201 Mo. App. 436

BERRY v. CITY OF SEDALIA.

No. 13214.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Pettis County; N. B. Davis, Judge.

Suit by Elizabeth Jane Berry against the City of Sedalia. Judgment for plaintiff, and defendant appeals. Affirmed.

R. S. Robertson, of Sedalia, for appellant. C. C. Kelly and G. W. Barnet, both of Sedalia, for respondent.

BLAND, J.

This is a suit for personal injuries. Plaintiff having, recovered a verdict and judgment in the sum of $750, defendant has appealed. The facts show that plaintiff, a woman 71 years of age, was crossing Third street in Sedalia, Mo., from north to south on the west side of Ohio avenue. She crossed that portion of the street used by pedestrians generally for crossing. She reached a point near the south curb line of Third Street when she discovered her daughter in the rear. Thereupon plaintiff started back north, reaching a point about 6 or 7 feet from the north curb line of Third street, when she slipped and fell, sustaining the injuries sued for.

As grounds of negligence the petition alleged that—

"The paving aforesaid on and near the west side of said Ohio avenue and across said Third street was on the 2d day of September, 1916, in a dangerous and defective condition, in that the bricks of said pavement were, as originally put in and by wear thereafter and by reason of their slope, so smooth and slippery as to render them dangerous to persons traveling upon them either on foot, on horseback, or in vehicles."

One of the defenses pleaded was that the street at the point of the accident was constructed with a slope from the center to the gutter for the purpose of having the water drain from the center of the street to each side thereof; that the paving of the street "with the crown or center higher than the sides is the proper and customary way of making and constructing brick pavements, and was made in accordance with the plan adopted by the city council of Sedalia, Mo., for paving said street."

The evidence shows that the street at the point of the accident was constructed, as alleged in the answer, with the crown or center higher than the sides and with a gradual slope toward the curbs. The material used in the pavement was vitrified brick, which had been laid some years before the accident. The only defect in the pavement was that it had been originally constructed extremely smooth and slippery or had become so by constant wear. There was a one-way street car track in the center of the street, composed of two rails. From the north rail of the track to the curb was 13 feet. Between these two points there was a fall of 12 inches. This crossing on Ohio avenue was the most traveled point of any street of the city of Sedalia. The testimony was that the point where plaintiff fell was very slick; a witness saying; "I don't know how I can qualify `very.' It was very much slicker than the rest of the street west of where plaintiff fell." One witness testified: "It had been gradually getting slicker all the time. I expect thousands of people go over that street every day, and it is just the constant wear—the result of constant wear; there are no people walking over the other part of the street except that; there is no other part of the street used so very much." Many persons had slipped and fallen at the same place previously, and there was evidence that "it was a very common occurrence * * * to see somebody fall on that street there." One witness testified that he himself had slipped and fallen at the same place. Some time after the accident the city placed a coating of asphalt over the crossing.

Defendant urges that its demurrer to the evidence should have been sustained; defendant claiming that cities are under the duty to construct their pavements and sidewalks to present a smooth and even surface, and that they are not liable for injury to persons slipping thereon. It may be conceded that cities should construct and maintain smooth and even-surfaced streets and sidewalks, but this does not authorize such cities to construct or permit the surface of their much-used streets and sidewalks to become so slick as to be dangerous to persons using the same. The evidence in this case shows that the place where plaintiff fell was so extremely slick as to be highly dangerous to pedestrians, and we think there is no question but that the city was liable for maintaining its street in such condition under the circumstances. Cromarty v. City of Boston, 127 Mass. 329, 34 Am. Rep. 381; O'Brien v. St. Paul, 116 Minn. 249, 133 N. W. 981, Ann. Cas. 1913A, 668; Lyon v. City, 9 Ind. App. 27, 35 N. E. 128.

Defendant makes the point that its demurrer to the evidence should have been sustained for the reason that defendant claims that the petition fails to state a cause of action in that, as defendant says, the petition bases plaintiff's right to recover upon the slope of the street and the condition of the pavement as originally put in under a general. governmental plan; that the evidence likewise shows plaintiff was injured by reason of a defect in such a plan, and that, as the construction of the street with the crown or center higher than the gutter was in accordance with this general plan of the city, the city is not liable.

Of course, it is well settled that the city has a right in its governmental capacity to adopt a general plan of street improvement, and if the injury results from a danger inherent in the adopted plan, the city is not liable, but it is equally established that, if the danger has arisen from the negligent construction or maintenance of the plan, the city is liable. Birkhimer v. City of Sedalia, 200 S. W. 298; Gallagher v. Tipton, 133 Mo. App. 557, 113 S. W. 674; Ely v. St. Louis, 181 Mo. 723, 81 S. W. 168; Trippensee v. Jefferson City, 174 Mo. App. 727-729, 161 S. W. 303; Hays v. City, 159 Mo. App. 431, 141 S. W. 3; Nelson v. Kansas City, 170 Mo. App. 542, 157 S. W. 94.

We do not construe the allegation of the petition as making the slope of the street, for which...