Brolin v. City of Independence
| Decision Date | 29 January 1940 |
| Citation | 138 S.W.2d 741,235 Mo.App. 360 |
| Parties | THEA BROLIN, RESPONDENT, v. CITY OF INDEPENDENCE, A MUNICIPAL CORPORATION, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Ben Terte Judge.
AFFIRMED.
Judgment affirmed.
I. J Ringolsky, Wm. G. Boatright, Harry L. Jacobs and Ringolsky Boatright & Jacobs for respondent.
(1) The statement in the appellant's brief does not comply with Rule 16. Section 1060, Rev. Stat., Mo., 1929; McDonnell v. Hawkeye Life Ins. Co., 84 S.W.2d 387; Flanagan Mill. Co. v. St. Louis, 222 Mo. 306, l. c. 309, 121 S.W. 112, 113; Roberts v. Hogan, 269 S.W. 652. (2) Defendant's demurrer was properly overruled. (a) The notice was sufficient. Reno v. St. Joseph, 169 Mo. 642, 70 S.W. 123; David v. St. Louis, 339 Mo. 241, 96 S.W.2d 353, 106 A. L. R. 849; Johnston v. Kansas City, 211 Mo.App. 262, 243 S.W. 265; Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690; McCarthey v. City of Washington, 124 Iowa 382, 100 N.W. 80; City of Bessemer v. Barnett, 212 Ala. 202, 102 So. 23; Canterbury v. Boston, 141 Mass. 215, 4 N.E. 808; City of Birmingham v. Guy, 222 Ala. 373, 132 So. 887; Weber v. City of Minneapolis, 132 Minn. 170, 156 N.W. 287; Dalton v. Salem, 136 Mass. 278. Appellant's specification of error is not broad enough to raise the point. (b) Whether plaintiff was guilty of contributory negligence and whether she was warranted in travelling the route she followed were questions for the jury. Newberry v. City of St. Louis, 335 Mo. 1, 70 S.W.2d 546; Taylor v. City of Springfield, 61 Mo.App. 263; Graney v. St. Louis, 141 Mo. 180, 42 S.W. 941; Merritt v. Kansas City (Mo. App.), 46 S.W.2d 275; Stollhans v. City of St. Louis, 343 Mo. 467, 121 S.W.2d 808. (3) The court did not err in giving plaintiff's Instruction "A." (a) Appellant's Instruction "A" in effect did require a finding that the city had knowledge of the dangerous condition of the sidewalk. Lithegner v. St. Louis (Mo. App.), 125 S.W.2d 925. The finding required by the instruction that the sidewalk was not reasonably safe necessarily involved a finding that the city presumptively knew that it was dangerous, since the city was bound to the standards of reasonable persons. Buckley v. Kansas City, 95 Mo.App. 188, 196, 68 S.W. 1069; Brands v. St. Louis Car Co., 213 Mo. 698, 708, 112 S.W. 511; Minnier v. Sedalia, Warsaw & Southwestern Ry. Co., 167 Mo. 99, 112, 66 S.W. 1072; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. The instruction specifically required a finding of negligence. Negligence in respect of the street condition being proved, it was unnecessary to have a finding of negligence in regard to the sidewalk. It was sufficient to warrant plaintiff to use the street, that the sidewalk was not reasonably safe and it was immaterial whether the unsafe condition was caused by the city's negligence or whether the city appreciated the dangerousness thereof. The instruction fairly construed did require a finding of knowledge on the city's part that, because of the condition of the sidewalk, pedestrians customarily used the street. No more was necessary. Brolin v. City of Independence, 232 Mo.App. 1056, 114 S.W.2d 199; Colton v. Kansas City, 162 Mo.App. 429, 145 S.W. 494; Bassett v. St. Joseph, 53 Mo. 290; Edmonston v. Kansas City (Mo.), 227 Mo.App. 817, 57 S.W. 690. (b) Instruction "A" did not improperly single out evidence. It was plaintiff's main instruction covering the whole case and simply grouped the facts upon which she was entitled to a verdict. (4) The court did not err in allowing the plaintiff to amend her petition and in refusing defendant's request for a continuance. (a) The amendment simply incorporated the theory suggested by this court months before in its former opinion in the case. Moreover, the facts averred therein had appeared in evidence at the former trial. Furthermore, the defendant a week before the trial had taken plaintiff's deposition and interrogated her concerning the very facts referred to in the amendment. Lastly, it is doubtful whether an amendment was even required. Brolin v. City of Independence, 232 Mo.App. 1056, 114 S.W.2d 199; Sec. 941, R. S. Mo. 1929; Waverly Timber & Iron Co. v. St. Louis Cooperage Co., 112 Mo. 383, 20 S.W. 566; Peterson v. Met. Street Ry. Co., 211 Mo. 498, 111 S.W. 37; Roy v. Kansas City, 204 Mo.App. 332, 224 S.W. 132.
John F. Thice and Charles H. Walters, Jr., for appellant.
(1) The court committed error in refusing to sustain defendant's demurrer offered at the close of the plaintiff's evidence, and renewed at the close of all the evidence. (a) Plaintiff failed to prove that a statutory notice as required by Section 6898 of the Revised Statutes of Missouri, 1929, was served on the defendant. Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690; Lyons v. St. Joseph, 112 Mo.App. 681, 87 S.W. 588; David v. City of St. Louis, 96 S.W.2d 353; R. S. of Mo. 1929, sec. 6898. (b) Under all the evidence plaintiff failed to make a case. Brolin v. City of Independence, 114 S.W.2d 199, l. c. 203; Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690; Montgomery v. City of Philadelphia, 113 A. 357, 270 Pa. 346; Welch v. McGowan, 262 Mo. 622, 172 S.W. 18; Waldeman v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242. (2) The court erred in giving to the jury plaintiff's Instruction "A." (a) The instruction covers the whole case and directs a verdict for the plaintiff, fails to require the jury to find that the defendant knew of the dangerous condition of the sidewalk on the south side of Maple Avenue created by a section of the sidewalk sunken below the level of the sidewalk or that the defendant was guilty of negligence in maintaining it in such condition, but in effect the instruction told the jury that if the jury found the facts hypothecated therein, that the defendant was guilty of negligence as a matter of law. Long v. F. W. Woolworth Co., 109 S.W.2d 85, 89. (b) The instruction singles out facts and evidence to the exclusion of conflicting testimony. Zumalt v. Chicago & Alton Ry. Co., 266 S.W. 716, l. c. 726; Lithegner v. City of St. Louis, 125 S.W.2d 925, 931. (3) The court erred in refusing the request of the defendant for a continuance, after having permitted the plaintiff, on the day of trial, to amend her petition on material facts which required new evidence on the part of the defense. Brolin v. City of Independence, 114 S.W.2d 199; Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690; Sion v. S. S. Kresge Co., 103 S.W.2d 533, l. c. 526.
This is a damage suit instituted by Thea Brolin, plaintiff below, against the City of Independence, Missouri, defendant. The parties will be referred to herein as plaintiff and defendant. Plaintiff's cause of action grows out of injuries alleged to have been suffered by her when she slipped and fell in a street of defendant city, which street she was, at the time, walking over because of the alleged dangerous and unfit condition of the adjacent sidewalk. Plaintiff had a judgment and defendant appeals.
Defendant offered a demurrer at the close of all of the evidence and assigns error because of the failure of the trial court to sustain same.
This case was before us on another appeal, Brolin v. City of Independence, 114 S.W.2d 199. In our opinion in that case we reviewed the evidence extensively and held that in order for plaintiff to make out a case of liability against defendant she must show her use of the street instead of the sidewalk because of the unfit condition of the sidewalk; that such theory is the only one upon which recovery may be had by a pedestrian injured in a fall in the street, where a sidewalk is provided, because the law does not ordinarily place on the city such a high duty of maintenance of its streets for the safe use thereof by pedestrians as it fixes and requires in the case of sidewalks. In view of our opinion in the former appeal, and of the specific reasons urged in this case in support of the demurrer, we shall confine our summation of the facts in evidence on this trial to those touching the points here urged.
Plaintiff at the time of the accident, and for many years prior thereto, had lived at her home at the northwest corner of the intersection of Park and Maple. Her home was on the north side of Maple and on the west side of Park. Maple was a paved street, running east and west, and Park, running north and south, was paved from the intersection southward, but was unpaved in front of plaintiff's home, and northward. The unpaved section of Park sloped downward to the intersection, and when it rained mud and clay were washed onto the intersection, filling the north half thereof level with the curb on the north, and thinning out towards the crown of the streets, in the center, to about one fourth inch in thickness. There was no sidewalk along the north side of Maple, but there was one on the south side thereof, running eastward from the intersection. Some thirty or forty feet east of the curbing at the corner of Park and Maple one or more sections of this sidewalk had sunk down until it was several inches lower than the remainder of the sidewalk, and, on the occasion of the injury it had been raining and this depression was filled with water, and the parkway between the sidewalk and the curbing was also water soaked and muddy. The intersection was coated with mud, as above described, but was driest at the center along the crown of the street. Plaintiff and other pedestrians desiring to walk eastward from this corner used the sidewalk in dry weather; but in rainy weather pedestrians universally followed the street past the sunken place in the sidewalk. The condition of the sidewalk and street during...
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