Browning v. City of Aurora
| Decision Date | 17 June 1915 |
| Citation | 177 S.W. 685,190 Mo.App. 477 |
| Parties | OSCAR M. BROWNING, Respondent, v. CITY OF AURORA, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.
AFFIRMED.
Judgment affirmed.
I. V McPherson and James A. Potter for respondent.
H. H Bloss and George Pepperdine for appellant.
--As a result of a jury trial the plaintiff obtained a judgment for $ 3000 against defendant on account of injuries received by stepping in a hole of a culvert in defendant city and it has appealed.
Intersecting Morgan street at an alley between Lee and Delta streets, at the time of the accident, was a ditch over which was a concrete culvert. Morgan street, or avenue, ran north and south and was graded and graveled. The cut for the grading extended to the curb line of the street. The sidewalk portion of the street had never been improved further than to place thereon a few gravel in places. Across this ditch, about three feet deep, in the sidewalk line, some planks were placed lengthwise making what is referred in the testimony and in this opinion as the "foot bridge" eight or ten feet long and three or four feet wide, six or eight inches below the general level of the walk portion of the street, sagging in the middle and having no baluster. Just southwest of the concrete culvert and across the gutter at the curb line on the west side of the graded portion of Morgan street a plank culvert was constructed and maintained by the city practically on a level with the sidewalk. The culvert was twelve or fourteen feet long and four or five feet wide, and used as a wagon way. The plaintiff in walking hurriedly over this culvert after dark on the evening of January 1, 1914, stepped into a hole therein about six inches in width and about eighteen inches in length and received injuries upon which his judgment is based. Just when this culvert was placed there is not disclosed, but one witness, an ex-street commissioner testified that when he held that office in 1909 he, for the city, repaired it, and put the footbridge in. The man who was street commissioner in the Spring of 1912 testified that he then patched this culvert for the city. Another witness testified that this footbridge was there only a few years before the accident, and many of the witnesses testified that the path connecting the footwalk on the west side of Morgan street, south of this alley, with this wooden culvert was there long before the footbridge was constructed and the inference is justifiable that the public considered the footbridge more unsafe and unsatisfactory for foot travel than the roadway of the street, especially at night, and had been, since 1909, at least, using it in preference to the footbridge. Witnesses testified as to the hole in this culvert, one saying it had been there two or three years, that it had been repaired but the repair had given way six months before the accident, and upon this latter point he was corroborated by other witnesses.
Under points and authorities in appellant's brief we have the following questions submitted for decision: I, II, IV and V, contributory negligence sufficient to defeat plaintiff's right to have his case submitted to a jury; III, that where a path is worn along a part of a street that is not designed for public travel the city, by reason of the use thereof, does not invite the public to use it and, therefore, it is not liable in this case for a hole in a culvert into which plaintiff stepped; and VI, the trial court erred in admitting testimony of repairs of the footbridge after the accident.
I, II, IV and V. It is said the contributory negligence of plaintiff sufficient to take his case from the jury consisted in his reckless passage over the culvert, in the dark, when he knew the hole was there and that there was a safer way to have reached the roadway of Morgan street than over the culvert. The plaintiff testified that he saw this hole in the culvert two or three months before his injury, but assumed that it had been repaired. Knowledge of the defect in a walk does not alone preclude a recovery for an injury caused thereby. [Devlin v. City of St. Louis, 252 Mo. 203, 207, 158 S.W. 346; Lueking v. City of Sedalia, 180 Mo.App. 203, 167 S.W. 1152, and Border v. City of Sedalia, 161 Mo.App. 633, 638, 144 S.W. 161.] Under the facts of the case at bar it was for the jury to say whether the plaintiff was guilty of contributory negligence in the manner in which he passed over this culvert or whether he should have gone some other route.
III. This point is the principal one involved and the contention of the defendant thereunder must be held to be without merit. There was ample, if not conclusive proof, on the maintenance of this wooden culvert by the defendant as part of the roadway of Morgan street and under the facts of this case the city cannot gainsay the right of the public to use it as a footway nor escape liability for its neglect to keep it in a reasonably safe condition. Conner v. City of Nevada, 188 Mo. 148, 157, 86 S.W. 256, et seq., 86 S.W. 256, a case in principle involving facts almost identical with the facts here disclosed, in so far, at least, as the duty is imposed on the city with reference to pedestrians in the wagon way of a street. That case is cited with approval in Benton v. City of St. Louis, 217 Mo. 687, 701, 118 S.W. 418. See also Curran v. City of St. Joseph, 175 S.W. 584 (Mo.).
In the case at bar the defendant city had for years maintained this culvert with knowledge of its use by the public as a footbridge and it ought to be required to respond for the consequences of its negligence in maintaining it. To hold that it should not would be to in effect announce the rule that pedestrians should either use the dangerous footbridge or abandon the use of Morgan street, things the city cannot exact. The same degree of care is not required of the city in maintaining this footway as would be exacted in the populous part of the city as to its regularly constructed sidewalks, but such ways, as here involved, must be kept reasonably safe. [Warren v. City of Independence, 153 Mo. 593, 599, 55 S.W. 227.]
The defendant cites Holding v. City of St. Joseph, 92 Mo.App. 143, as sustaining the point here made but there (p. 142) it is stated that no showing was made as to why the plaintiff left a path along the sidewalk portion of the street at a place where no provision was made for a digression therefrom. The plaintiff was also following a cross-lot path which the city had not adopted as a walk.
II. After testimony had been admitted without objection as to repairs of this footbridge subsequent to plaintiff's injury, and after defendant on cross-examination of one of plaintiff's witnesses had brought this fact out, one of plaintiff's witnesses was asked on direct examination what, if anything, he knew about the defendant having made repairs on the footbridge after plaintiff was injured. Defendant's attorney stated: "Object to that." The objection was overruled and defendant excepted. This character of an objection preserves nothing for review. [State v. Wilson, 223 Mo. 156, 170, 122 S.W. 701; State ex rel. West v. Diemer, 255 Mo. 336, 346, 164 S.W. 517.]
The record disclosing no errors and the jury having passed on the facts adversely to defendant the judgment must be and is affirmed.
CONCUR BY: FARRINGTON
CONCURRING OPINION.FARRINGTON J.--For reasons unnecessary to state herein I have worked out this case along the lines on which to my mind the case should be decided and prefer to file my opinion which states the grounds on which I think the judgment should be affirmed.
The plaintiff, a minor, recovered through his next friend a judgment for three thousand dollars against the defendant, a city of the fourth class, as damages for personal injuries sustained. He stepped in a hole in a culvert which had been constructed by the defendant city in one of its streets, receiving severe injuries. There is no contention that the verdict was excessive.
The charge of negligence is that the city failed in its duty to keep the culvert in its thoroughfare in reasonably safe condition for travel, and that it knew of the defect in the culvert or by the exercise of ordinary care could have known of and repaired the same.
The answer is a general denial coupled with a plea that if there was a defect in the culvert the plaintiff knew thereof and with such knowledge walked into it without regard for his own safety; also, that the culvert on which plaintiff was injured was not designed for foot travel and that defendant had no knowledge of it being used for such purpose, and that there was a part of the street designed for foot travel which plaintiff could have used and avoided the dangerous way.
The issues raised are, first, Was the city negligent? and, second, that granted, Was the plaintiff negligent?
The injury occurred on Morgan street, a street running north and south at a point about midway between two streets running east and west and intersecting Market street. At this midway point, leading west off Morgan street is an alley. There was a walkway along the west side of Morgan street at the place where a sidewalk would be and some gravel or chats had been spread on the same by the defendant. This walkway extended up to and beyond the alley intersection. Over this alley intersection, joining the walkway on either side, the city had constructed a bridge or culvert which we will call the sidewalk culvert. It was for pedestrians to use in traveling along the west side of...
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