Boyd v. Kansas City

• Citation: 291 Mo. 622,237 S.W. 1001
• Decision Date: 09 February 1922
• Docket Number: No. 13623.,13623.
• Parties: BOYD v. KANSAS CITY.
• Court: United States State Supreme Court of Missouri

237 S.W. 1001

291 Mo. 622

BOYD v. KANSAS CITY.

No. 13623.

Supreme Court of Missouri, in Banc.

February 9, 1922.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Irene Boyd against Kansas City. Judgment for the plaintiff was reversed by the Kansas City Court of Appeals, and case certified on the request of the dissenting judge to the Supreme Court. Judgment of the circuit court affirmed.

D. M. Harber and Francis M. Hayward, both of Kansas City, for appellant.

New, Miller, Camack & Winger, P. E. Reeder, Frank P. Barker, and R. D. Grover, all of Kansas City, for respondent.

SMALL, C.

I. It is a suit for personal injuries. The plaintiff had judgment against Kansas City, and the majority of the learned judges of the Kansas City Court of Appeals, to which the appeal was taken by the city, reversed, without remanding the case, on the ground that plaintiff had not given the city notice of the time and place of the accident as required by the statute in such cases, in that said notice stated the time of the accident was between the hours of 8 p. m. and 9 p. in. "on or about January 25, 1918," whereas it should have stated the date unqualifiedly and with absolute certainty as being "on January 25, 1918," which was the date the injury occurred. One of the learned judges of said court, however, Hon. Ewing C. Bland, dissented from the opinion of said court on the ground that it was in conflict with the decision of this court, Division No. 2, in the case of Costello v. Kansas City, 280 Mo. 578, 219 S. W. 386, and requested that the case be certified to this court, which was done.

The petition was against the city of Kansas City and the Kansas City Terminal Railway Company, but a demurrer to the evidence was sustained in favor of said terminal company, and the trial proceeded against the city, with the result there was a verdict and judgment against it alone.

The petition alleged, after the formal allegations of the corporate character of the defendants, that defendant railway company, some time prior to January 25, 1918, had built a bridge or viaduct on Harrison street over the Belt Line tracks at a point about halfway between Nineteenth and Twenty-First streets in Kansas City, Mo., and said bridge became thereby a part of the roadway of said Harrison street; that in building said bridge said railway company negligently constructed a large iron girder in the center thereof, running lengthwise north and south upon a concrete base 4 feet wide and 6 inches high, said girder itself being 20 inches wide and 32 inches high at its ends, and rising gradually several feet higher towards the center; that, in approaching said bridge from either direction, only the ends of said girder would be visible; that it was painted black, and, this being the color of the roadway, was invisible at night, and was so constructed as to be dangerous to drivers of vehicles and automobiles, and it was on January 25, 1918, and for a long time prior thereto, a nuisance; that said city knew of its dangerous condition, or could have known thereof by the exercise of reasonable care, long prior to said 25th day of January, 1918, but continued to negligently maintain said obstruction and dangerous street and said nuisance, and negligently failed to place any warning lights on or near said obstruction or said bridge, or provide any other means to warn drivers of vehicles of said obstruction in and dangerous condition of said street that by reason of the foregoing said bridge, especially during the nighttime, was dangerous to public travel and was a nuisance; that on or about the 25th day of January, 1918, between 8 o'clock and 9 o'clock p. m., plaintiff was a passenger or occupant of an automobile being driven north on said Harrison street from a point south of said bridge; the street and bridge were dark, and the automobile ran into said iron girder located in the center of said bridge in said Harrison street; that, owing to said street and bridge being improperly lighted, and that said girder was negligently placed in the center thereof by the defendant railway company, and negligently permitted to remain there by said city, the driver of said automobile did not discover said obstruction in time to prevent the automobile from colliding with said obstruction, and said automobile did run head on direct into the end of said iron girder at said time and place; that plaintiff had no warning of said obstruction, and did not see it prior to the accident, and the said driver did not know of its existence prior to said accident; that- said automobile was being driven at a lawful speed; that plaintiff was injured by said collision as follows: Her right leg, just below the hip, was broken, both legs bruised and sprained, her back sprained, and her entire body bruised, and she received a severe nervous shock to her entire system, and suffered and will continue to suffer great physical pain and mental anguish as a result thereof, for which she prays judgment for $25,000.

Plaintiff further says that she gave notice in writing, verified by her affidavit, to Hon. George H. Edwards, mayor& of said city, on the 18th day of February, 1918, stating the place where and the time when said injuries hereinbefore set forth, were received and the character and circumstances of such injuries, and that she would claim damages therefor from the defendant, Kansas City, Mo.

Wherefore plaintiff prays judgment against defendants for $25,000 and costs.

The answer of defendant city denied the allegations of the petition, except that said bridge was constructed by said Terminal Railway Company, and alleged that said bridge was constructed by said company by virtue of Ordinances Nos. 2336 and 9701 of Kansas City, Mo., approved, respectively, July 7, 1909, and August 11, 1911, in accordance with plans and specifications on file in the office of the board of public works of said city, and duly approved by said board long prior to plaintiff's alleged injuries; that said viaduct was planned, adopted, and constructed by virtue of the governmental power of said city; further, that plaintiff herself was guilty of contributory negligence: (1) In permitting the driver of said automobile, without protest, to drive such machine at a high and dangerous rate of speed; (2) in permitting, without protest and with full knowledge thereof, the said driver to drive such machine at an excessive rate of speed, to wit, in excess of 20 miles an hour, in violation of section 20 of Ordinance No. 28759 of said city; (3) in permitting said driver to drive said machine in a negligent manner in the center of street instead of to the right of such center, in violation of Ordinance No. 28759 of said city.

The reply denied that said viaduct was constructed by said railway company under and by virtue of said Ordinances 2336 and 9701, as stated in the answer, to either or any of them, and specifically denied that said viaduct was constructed as planned, adopted, or constructed under and by virtue of the governmental powers of said city, but alleges that said viaduct was constructed in direct violation of said ordinances in this: That it was not provided in said ordinances that a girder or any other obstruction should be placed in the middle of said viaduct, but did provide that all space thereon between sidewalks should be constructed as a roadway, free of obstructions, but that said girder was placed in the center of said roadway on said viaduct in direct violation of said ordinances, so as to make said road dangerous to public travel as alleged in the petition.

At the trial Ordinance No. 1197, referred to in the pleadings, was put in evidence, and section 2 provided for the construction by said Terminal Railway Company of said Harrison street viaduct, and that "the manner of construction of the viaducts shall be as provided in paragraph (d) of section 6 of said Ordinance No. 2336." "And the plans and specifications of all viaducts, subways and their approaches, whether required by this ordinance or Ordinance No. 2336, shall be subject to the approval of the board of public works."

Paragraph (d) of section 6 of said Ordinance No. 2336 was as follows:

"(d) The Kansas City Terminal Railway agrees that it will, at its own expense, and within the time limited in section 10 hereof, construct a viaduct over its tracks as said tracks now exist or as they may be hereafter constructed, added to, rearranged or reconstructed, with necessary approaches, at the intersection of its existing lines (acquired from the Kansas City Belt Railway Company) with each Pennsylvania avenue and Broadway, in accordance with such plans and specifications as shall be approved by the board of public works and by the board of park commissioners, respectively. The substructure of said viaducts shall be stone, concrete, or concrete and steel. The superstructure shall be steel or steel and concrete with the roadways and sidewalks carried on brick or concrete arches or on concrete slabs reinforced with steel bars. The approaches to said viaducts shall be steel, stone, concrete, or steel and concrete filled with earth where retaining walls are used. * * * The surface of said viaducts and approaches shall conform to the grade hereinafter by this ordinance fixed and determined. Said viaducts and approaches thereto shall be provided with sidewalks for foot passengers, which shall be uniform in width with the sidewalks on the connecting street, unless otherwise ordered by the board having supervision thereof, on both sides of each viaduct and approaches, except as hereinafter stated, and the remainder shall be roadway. The roadways and sidewalks shall be constructed of the best available material, and of such material as shall be first approved by the board having supervision thereof. Said viaduct and approaches shall, when constructed, be of sufficient strength to permit street car traffic. The construction of...