Berry v. City of Springfield

• Decision Date: 01 February 1929
• Docket Number: No. 27269.,27269.
• Citation: 13 S.W.2d 552
• Parties: BERRY v. CITY OF SPRINGFIELD et al.
• Court: Missouri Supreme Court

13 S.W.2d 552

BERRY v. CITY OF SPRINGFIELD et al.

No. 27269.

Supreme Court of Missouri, Division No. 1.

February 1, 1929.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Lloyd F. Berry against the City of Springfield and another. From a judgment for defendant city, plaintiff appeals. Affirmed.

Hamlin, Hamlin & Hamlin, of Springfield, for appellant.

Ed Barbour, Jr., of Springfield, for respondents.

GANTT, J.

An action for damages in the sum of $15,000 for personal injuries. On the demurrer of defendant city, it was ruled the petition did not state a cause of action. Plaintiff refused to plead further, judgment was rendered in favor of said defendant, and plaintiff appealed.

The pertinent parts of the petition follow:

"Plaintiff for his amended statement of his cause of action says that the defendant City of Springfield is and was at all times herein mentioned a municipal corporation duly organized as a city of the second class under the laws of Missouri relating to such cities; that the defendant Wm. Wade was at all said times an agent and employee of the said city; that on or about the 19th day of November, 1923, it was the duty of defendant City of Springfield to keep its streets in repair, and recognizing said duty, the city was on said date engaged in doing certain repair on its streets and in connection with its said work used a certain large automobile truck, which truck was at said time being driven by defendant Wm. Wade; that on said 19th day of November, 1923, the said William Wade as a part of his duty as an employee of said city was driving said truck to a garage located near Central street in said city and in doing so drove the said truck northward along Jefferson avenue, a public thoroughfare in said city, and turned westward upon Central street, also a public thoroughfare in said city; that as he was driving the truck toward the said garage as aforesaid, the plaintiff and certain other persons were riding upon the said truck with the knowledge and consent and at the invitation of the defendants; that when said truck reached Central street it turned west upon said street and stopped for the purpose of allowing plaintiff and others to alight therefrom; that others did get off of said truck and that plaintiff because of his position was the last man to attempt to leave said truck; that while plaintiff was in the act of alighting from said truck by climbing over the side thereof and using due care for his own safety, the said truck was, through the carelessness and negligence of the...