Boone v. City of St. Joseph

• Decision Date: 05 December 1927
• Docket Number: No. 16111.,16111.
• Parties: BOONE v. CITY OF ST. JOSEPH et al.
• Court: Missouri Court of Appeals

1 S.W.2d 227

BOONE v. CITY OF ST. JOSEPH et al.

No. 16111.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Rehearing Denied January 3, 1928.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be officially published."

Action by Anna M. Boone against the City of St. Joseph and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Chas. H. Mayer, of St. Joseph, for appellant St. Joseph Ry., Light, Heat & Power Co.

Richard M. Duncan, of St. Joseph, for appellant City of St. Joseph.

Mytton & Parkinson, of St. Joseph, for respondent.

ARNOLD, J.

This is a suit in damages for personal injury. The defendants are the city of St. Joseph and the St. Joseph Railway, Light, Heat & Power Company; the latter being a corporation owning a franchise from the former for the operation of a street railway and other public services in said city.

Plaintiff is a widow and a resident of St. Joseph. There was a judgment against both defendants in the sum of $2,000, and each has appealed. The facts shown are that Third street in the city of St. Joseph runs north and south, and Robidoux street east and west, both being public thoroughfares. It is of record that defendant St. Joseph Railway, Light, Heat & Power Company operates a line of street cars on Third street with two lines of track; that on the evening of March 2, 1926, about 7 o'clock, while crossing Third street a few feet south of the intersection of said streets, plaintiff stepped into a hole in the pavement near the outside of the west rail of said railway track on Third street, and fell, breaking her right arm above the wrist, causing an abnormality or permanent deformity.

There was evidence tending to show that the said hole in the pavement was within 12 inches of, or abutting, the said west rail of the street car track; that it was about 5 inches in depth at its edge nearest the said rail, and gradually grew shallower for a distance of 2 feet therefrom toward the west curb line, where it became flush with the surface of the pavement; and that the hole, of the dimensions named, extended about 2 feet north and south. The testimony is to the effect that the night was dark, and, while there was a street light at the intersection near which the accident occurred, testimony in behalf of plaintiff shows that the said light was ineffectual to show the hole in the pavement, owing to an accumulation of dirt and bugs in the light globe.

The testimony is not clear as to the exact point at which plaintiff stepped into the hole, i. e., whether the point at which her foot entered said hole was within or without a line 18 inches from the west rail of the street car track. The record discloses the appeal is a contest between the defendants as to which is liable, there being no great effort on the part of either to refute plaintiff's right to the judgment rendered. Instructions offered in the nature of demurrers to the evidence in behalf of each defendant were overruled. On behalf of defendant city, there was introduced in evidence Special Ordinance No. 5520, sections 3 and 6 of which, it is urged, apply to the facts in this case. Said sections are as follows:

"Section 3. The rails of the track of said railway shall be laid and kept on a level with the established grade of the street upon which they are laid and the space between the rails and for eighteen (18) inches on the outside thereof shall be paved by the holder of this franchise with the same kind of paving with which said street is now or may hereafter be paved, and said space shall be kept in repair by said St. Joseph Railway, Light, Heat & Power Company."

"Section 6. The St. Joseph Railway, Light, Heat & Power Company, its successors and assigns, shall protect the city of St. Joseph against the payment of any sum or sums that may be adjudged against said city as damages on account of injuries sustained by any person or persons by reason of the granting of this franchise, or on account of any negligence on the part of said grantee in the construction, maintenance and operation of said line of railway, provided that in case of suit against said city for the recovery of any such damages said grantee or its assigns shall be notified of the institution of such suit and be permitted to defend the same."

It is not disputed that said ordinance was in effect at the time of the accident which is the basis of this action. Defendant St. Joseph Railway, Light, Heat & Power Company insists the trial court erred in refusing to give its requested instruction B, in the nature of a demurrer at the close of all the evidence in the case. In support of this charge, it is urged the proof does not show affirmatively that the place where plaintiff put her foot in the hole, when she fell, was within 18 inches of the street car rail, and that, in the absence of such affirmative showing, the demurrer should have been sustained. It is insisted the injury may have resulted from one of two causes, and that plaintiff must show, with reasonable certainty, that the cause for which said defendant is liable is the one which produced the injury; and, if the evidence leaves such cause to conjecture, plaintiff must fail in her action.

Defendant cites four cases, which hold, in effect, that the mere occurrence of a negligent injury does not make the defendant liable; that there must be a direct connection between the negligent act and the injury, and negligence of the...