Berry v. Kansas City

• Decision Date: 27 January 1908
• Citation: 128 Mo. App. 374,107 S.W. 415
• Parties: BERRY et al. v. KANSAS CITY.
• Court: Missouri Court of Appeals

107 S.W. 415

128 Mo. App. 374

BERRY et al. v. KANSAS CITY.

Kansas City Court of Appeals, Missouri.

January 27, 1908.

1. MASTER AND SERVANT — INJURIES TO SERVANT — ASSUMPTION OF RISK.

A city owning its own water plant employed plaintiff's decedent to read and inspect water meters, among which was one situated in the ground within six inches of the end of the ties of a railroad track. While deceased was inspecting that meter he was struck on the head by a car moving on the track and killed. Held, that the danger being perfectly obvious, and the car by which he was struck not being operated by the defendant, the risk was one which deceased assumed, and no cause of action existed against defendant city for his death.

2. SAME — PLEADING.

While, in considering a demurrer, allegations in a petition are accepted as true, a mere statement of a conclusion will be controlled by the facts which clearly appear from the entire pleading; and hence an allegation in a petition in an action against a city to recover for the death of plaintiffs' decedent, an experienced man, while reading a water meter placed in the ground so close to a railroad track that cars would extend over the box, that deceased did not know that the place was unsafe, is a legal absurdity, and will not be accepted as a fact.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Hattie A. Berry and others against Kansas City. From a judgment for defendant, plaintiffs appeal. Affirmed.

William H. England, for appellants. Charles M. Bush and Edwin C. Meservey, for respondent.

ELLISON, J.

Plaintiffs are the minor children of Thomas E. Berry, deceased. Their father was an employé of the defendant city as examiner of water meters, and while engaged in that employment was killed by a railway train, the meter being located close by the track. The mother of the plaintiffs did not begin suit within six months, whereby the cause of action, if any, passed to the plaintiffs. There was a demurrer to the petition on the ground that it did not state facts sufficient for a cause of action. The demurrer was sustained, and, plaintiffs refusing to amend, judgment was rendered for defendant.

The substance of the petition, omitting formal allegations, is that the defendant city owned its own water plant; that on the 20th of March, 1906, and prior thereto, deceased was in the employ of the city to read and inspect water meters; that it was the duty of the city to locate its meters in a place where it would be reasonably safe for its servants in reading and inspecting; that, notwithstanding such duty, it located a meter within the yards and on the property of the Union Pacific Railway Company, and in such close proximity to the tracks of said railway that it was not a safe place; that the meter was in a box 3 feet square set in the ground so that the top of the box was level with the surface; that it was between a coal box and the railroad tracks; that the coal box was 6 feet long, 2 feet wide, and 3 feet high; that the meter box was covered with a lid on hinges and opened back from the track against...