Buckley v. Kansas City

• Decision Date: 14 March 1900
• Citation: Buckley v. Kansas City, 156 Mo. 16, 56 S.W. 319 (Mo. 1900)
• Parties: BUCKLEY v. KANSAS CITY et al.
• Court: Missouri Supreme Court

56 S.W. 319

156 Mo. 16

BUCKLEY v. KANSAS CITY et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

MUNICIPAL CORPORATIONS—NEGLIGENCE—DEFECTIVE SIDEWALK—LIABILITY—NOTICE.

1. To render a city liable for injuries sustained through a defective sidewalk, it must appear that the city had either actual or constructive notice of its condition, and time to remedy the same before the accident.

2. Where plaintiff fell through a glass sidewalk resting on framework, and sustained injuries, and it did not appear what the natural life of such a walk was, and the defect was not calculated to attract attention, constructive notice could not be imputed to the city.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Anson E. Buckley against Kansas City and another. From a judgment against defendant city, it appeals. Reversed.

Damages for personal injuries received by reason of the giving away of a sidewalk. The petition alleges that William M. Hall was the owner of premises numbered 818 Walnut street, in Kansas City, Mo.; that he had caused an areaway to be made in front of said building, under the sidewalk, and adjoining the building; that the western four feet of the sidewalk adjoining the building was constructed of iron plates, set in iron frames, and containing small glass lights, known as "prismatic lights" or "bull's eye lights," which construction was known to the city; "that said defendants [the city and Hall] so carelessly and negligently conducted themselves in reference to said western portion of said sidewalk in front of the entrance to the hallway of said building that the same, on the 6th day of July, 1895, and for a long time prior thereto, was carelessly and negligently suffered to be and remain in a dangerous, defective, and unsafe condition, in this: that the flanges upon which said iron plates rested on said 6th day of July, 1895, and for a long time prior thereto, were carelessly and negligently suffered and permitted to be rusted, cracked, and broken, which said defects were known to all of said defendants, or might, by the exercise of ordinary care on their part, have been known to them, and which could not be discovered with due care or caution by plaintiff; that on the 6th day of July, 1895, while plaintiff was lawfully and properly standing upon the western portion of said sidewalk constructed of iron plates set in iron frames and containing small glass lights as aforesaid, in front of the entrance to the hallway of said building, said iron plates, upon which said plaintiff was standing, gave away or fell by reason of said rusted, cracked, and broken flanges, as aforesaid, and precipitated plaintiff into said areaway"; in consequence of all which plaintiff was injured, and for which he prayed $10,000 damages from both defendants. The petition contained also a second count, based upon allegations of defective construction of the sidewalk, but upon the trial the court instructed the jury that there was no evidence to support that count. The plaintiff submitted to the ruling, and therefore it is not now here for consideration. The answer of the city was a general denial, with a plea of contributory negligence. The jury returned a verdict for the defendant Hall and against the city, and assessed the damages at $5,000. After proper steps, the city appealed.

R. B. Middlebrook and H. S. Hadley, for appellant. Warner, Dean, McLeod & Holden and Jas. G. Smart, for respondent.

MARSHALL, J. (after stating the facts).

The defendant relies in this court solely upon the refusal of the court to give an instruction in the nature of a demurrer to the evidence, which was interposed at the close of the whole case. This, of course, implies that, conceding the truth of everything the evidence tended to prove, with all the favorable inferences that may be reasonably and fairly drawn from it (James v. Association, 148 Mo., loc. cit. 15, 49 S. W. 978), there is no substantial testimony to support the verdict. To determine this question critical reference to the ultimate facts proved becomes necessary. The defendant Hall excavated the sidewalk in front of his building to a depth of 16 feet. He covered the excavation with stone up to a point within about 3½ feet of his building line. He covered the 3½ foot space with a sidewalk made of iron and glass, which was constructed in this manner: A frame of iron 7 feet in length by 3½ feet in width was set in, resting on the east side in a groove cut into the stone, and on the west side, next to the building, upon an iron girder which ran parallel with the front of the building, and on either end upon cross-beams of iron which extended from the stone to the girder, and adjoined similarly constructed sidewalks on the north and south of Hall's building. The frame was set in the groove in the stone so as to make the whole sidewalk on the same plane or level. The frame was subdivided, by cross-bars or cross-ribs of iron, into four plates made of iron, each plate being about 22 by 40 inches. These plates rested upon flanges at the sides of the frame and in the cross-bars or cross-ribs. These flanges were about an inch and a half wide. The plates had round holes in them, about the size of a silver dollar, and these holes were filled in with prismatic lights or bull's eye lights made of glass. The purpose was to secure light from the sidewalk to the cellar of Hall's building. On the 6th of July, 1895, at about 2 o'clock in the afternoon, the plaintiff was standing on this sidewalk, so composed of iron and glass, when suddenly and without warning the sidewalk gave way, and he was precipitated into the areaway below, and seriously injured. The two north plates and the cross-beam on which they rested fell in. The cross-beam broke off close to the sides of the frame, and the flange on the frame next to the building was broken off for about 18 inches, commencing at the point where the cross-beam joined the frame, and extending towards the northwest corner of the frame. The frame and the cross-bars or cross-ribs were all molded together. For about a year before the accident the frame was broken or cracked at the corners,—that is, broken clear across the frame at the "mitre,"—and these breaks could be seen by any one standing on the surface of the sidewalk. Hall had had this sidewalk examined about a year before the accident, with a view to stopping leakage, and the cracks had been filled with oakum, pitch, and fillet. At that time the man employed by Hall to do this work discovered that a cross-beam some 10 or 12 feet south of where this accident occurred was broken. This, however, had nothing to do with this accident, for that cross-beam and that part of the sidewalk did not give way, but are still there, the broken cross-beam having been...