Bronson v. Kansas City
| Decision Date | 06 April 1959 |
| Docket Number | No. 22884,22884 |
| Citation | 323 S.W.2d 526 |
| Parties | Arthur BRONSON, Jr., II, by etc., Respondent, v. KANSAS CITY, Missouri, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Benj. M. Powers, City Counselor, Thos. J. Conway, Jr., Asst. City Counselor, Kansas City, for appellant.
Roger J. Barbieri, Kansas City, for respondent.
This is an appeal by defendant, the City of Kansas City, from a $2,500 judgment in favor of plaintiff, Arthur Bronson, Jr., II, a minor in a suit brought by his mother and next friend, Helen O. Bronson. Plaintiff, 4 1/2 years old, was burned by a flare pot placed by the City to warn of an excavation in the public sidewalk in front of plaintiff's home. The only point raised by defendant City on this appeal is that the trial court erred in overruling its motion for a directed verdict at the close of plaintiff's evidence and at the close of all the evidence for the reason that the use of flare pots by the City to guard excavations is not negligence.
By proceeding to put on its evidence after the trial court overruled its motion for a directed verdict at the close of plaintiff's evidence, defendant waived that contention of error and preserved only its contention that the trial court erred in overruling its motion for a directed verdict at the close of all the evidence. Lindsay v. McLaughlin, Mo.App., 311 S.W.2d 148, 149.
In ruling on the question of whether all the evidence made a submissible case for the jury the appellate court must take as true every fact and circumstance favorable to plaintiff which the evidence tends to prove, and give to plaintiff the benefit of all reasonable inferences which may be fairly drawn therefrom. Capra v. Phillips Investment Co., en Banc, 302 S.W.2d 924. Thus, plaintiff is accorded the benefit of any part of defendant's evidence favorable to him and not contradicted by plaintiff's own testimony or not contrary to plaintiff's fundamental theory of recovery. Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 568.
We proceed to set out the evidence favorable to plaintiff.
Approximately a week to two weeks before May 11, 1955, defendant City was engaged in the process of removing broken sidewalk from the 2600 block on Wabash Street, including two slabs in front of plaintiff's home at 2622 Wabash Street. The City employees would take up the broken concrete from a particular section or slab of the sidewalk. They would not immediately refill that section or slab with fresh concrete. Their practice was to leave it unfilled until enough slabs were removed and ready for new concrete to require at least three or more yards of cement because 'it was cheaper' that way. Since each slab is only about 5 feet wide, 6 feet long, and 4 or 5 inches deep, and as a lot of tree roots in this particular block had to be cut out some delay resulted. Further, it was not considered feasible to pour cement while it was raining or if there was an accumulation of water in the place where the slab had been removed. Sometimes the problem from such an accumulation of water was solved by using sand to soak it up.
Approximately twenty-five children lived in this particular block. Quite a few of these children were under the age of 10 and approximately 15 of them were under the age of 5. All these children customarily played on the sidewalk in the block and they continued to play there during the time that the work of repairing the sidewalk was taking place. This fact was well known to the City employees engaged in the repair work. Upon several occasions when the children crowded around them to watch them work these employees would 'shoo' the children away if the children bothered them.
At this particular time it was the practice of the City in order to warn of excavations to use some type of warning light and an accompanying barricade. The City had both flare pots and red lanterns available for that use. Its witness, Boyd L. Ludlow, Safety Supervisor of the Public Works Department, testified that generally the City would use the flare pots because there was more vandalism and loss in connection with the use of red lanterns and the flare pot was less likely to blow out from the wind. He also testified that it was the practice of the City to leave the flare pots burning both night and day rather than have them burning at night only. He stated that this practice permitted the flare pots to be serviced only once every 24 hours whereas if they were kept burning only at night it would require servicing them twice a day; once to put them out in the morning, and once to light them again in the afternoon.
One City employee, Charlie Vestal, had the duty of transporting all lights and barricades to the places needed and the number of lights so delivered varied from 75 to 150 a day throughout the City. His instructions by the City were to keep them burning day and night continuously. His practice was to pick up the empty flare pot each day from the particular job and to replace it with a fresh one. If the work crew wasn't present he replaced them and lit them; but if there, he just picked up the empty flare pot and left a full one which the work crew was to light when they left that evening. In May, 1955, it was his practice to start on his route about 7:00 a. m. and to keep at it all day. His records indicated he placed flares in this block commencing May 3rd and picked them up for the last time on May 9, indicating no further need or use for them thereafter. He also worked with red lanterns and had some available for use at this time.
According to Mr. Ludlow the reason why the flares were left burning during the day was not that they were needed to mark or warn of the excavation which would be visible and also be marked by some sort of barricade but because the City would have the extra cost of servicing them twice a day, requiring an additional employee or two and the expenditure of more work time. He stated this was the only reason these flare pots were kept burning during the day. Flare pots are not any more readily seen in the daytime than any other light.
The red lanterns had an enclosed flame. The flare pots, approximately 7 inches in diameter, had an open flame which emanated from the top and tended to go out each side. Ordinarily, the flame would be of a height of about three inches. It would be affected by the wind. Ordinarily even in a wind the flame would not get beyond the circumference of the pot.
Defendant presented the testimony of an engineer with the Gas Service Company to the effect his company started using flare pots about 1951 or 1952, and that they also used red lanterns. They used red lanterns more than flare pots but were going more to flares because they were very seldom tampered with or stolen since they are dirty and hot. His company permitted the flares to burn day and night to save the labor and cost of going by each morning and turning them out and each evening to light them up again. Defendant's witness, John Thompson, Superintendent of a local construction company, testified it was the custom of contractors in Kansas City in 1955 to use either the red lanterns or flare pot and a barricade to guard excavations and they let the flare pots burn around the clock to save the expense of turning them on and off.
Earl Miller, concrete finisher foreman for the City, who was in charge of and worked on the concrete slabs in front of plaintiff's home, testified it would not require even half a day to take out the two sections of sidewalk in front of plaintiff's home and cut out the tree roots there. When the concrete is poured it dries in approximately 24 hours. His practice is to endeavor to pour the fresh cement around 10:00 a. m. and to take the barricades off the next day. Part of his duties was to determine the type of barricade and the number of lights to use when a sidewalk is excavated and to put up the barricades and lights. Mr. Vestal merely left whatever lights and barricades he told him to leave.
The type of barricade Miller chose for this location was an 'A frame' with a 2 X 4 about 4 feet long that goes into this 'A frame'. His crew dug out the broken concrete from two slabs in front of plaintiff's home. One slab was to the south, about at plaintiff's extended south property line and the other slab was approximately 15 feet to the north of that slab. He placed one 'A frame' at the south edge of the south section of the removed sidewalk and the other 'A frame' at the north edge of the north section of removed sidewalk. This left three open sides at each of the two excavations, and even where placed the 'A frame' did not serve as a solid barricade but rather provided only a single 2 X 4 that sloped down to the sidewalk. He also placed one flare pot in the middle of each of the two excavations.
During this time other excavations in that block on both sides of the street were also made and flare pots were put in them. The City employees did not work every day during that time. The concrete in front of plaintiff's house was not poured until the day after the accident, and it took only a few hours to pour it.
Numerous neighbors of the plaintiff testified that they did not see any barricade or other barrier or planks of any type near the two excavations in front of plaintiff's home. Several did see boards lying flat on the sidewalk near them. Several mentioned that they saw the 'A frame', but it was not a barricade and it fell down easily and someone had to set it up again.
Mrs. Hazel Keller, 2620 Wabash, lived with her husband and three young children next door to plaintiff. It was cloudy and windy the day of the accident. She was in her front bedroom, upstairs, and heard a child scream. This occurred 'very early in the afternoon or probably late in the morning'. She looked out and saw her son (the same age as plaintiff) and Arty (plaintiff) by these pots the workmen had left burning on the sidewalk in front of plaintiff's...
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