Buckley v. Kansas City

• Citation: 68 S.W. 1069,95 Mo.App. 188
• Parties: ANSON E. BUCKLEY, Respondent, v. KANSAS CITY, Appellant
• Decision Date: 02 June 1902
• Court: Kansas Court of Appeals

68 S.W. 1069

95 Mo.App. 188

ANSON E. BUCKLEY, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. E. P. Gates, Judge

AFFIRMED.

Judgment affirmed.

L. A Laughlin for appellant.

(1) The court erred in refusing the peremptory instruction to find for the defendant at the close of the evidence. 156 Mo. 27. (2) The court erred in admitting evidence of the condition of the frames north and south of the one in controversy. Kuntsch v. New Haven, 83 Mo.App. 174; Weinberg v. Appleton, 26 Wis. 56-58. (3) The court erred in admitting the anwer to the hypothetical question asked Mr Hedrick by the plaintiff. Benjamin v. Railway, 50 Mo.App. 602; Mammerberg v. Railway, 62 Mo.App. 563; Senn v. Railroad, 108 Mo. 142; Turner v Haar, 114 Mo. 335. (4) The court erred in permitting the witness Hedrick to give his opinion as to whether the walk was in a reasonably safe condition at the time of the accident. District of Columbia v. Haller, 4 App. D. C. 405; Holton v. Hicks, 58 P. 998; Eubank v. Edina, 88 Mo. 650; Monahan v. Clay and Coal Co., 58 Mo.App. 68; People v. Plank Road Co., 125 Mich. 366; Girard v. Kalamazoo, 92 Mich. 610; See also Pyle v. Pyle, 158 Ill. 289; Myers v. Lockwood, 85 Ill.App. 251. (5) The court erred in refusing defendant's instruction number 10.

Warner, Dean, McLeod & Holden, and James G. Smart for respondent.

(1) Three reputable experts, introduced by plaintiff, supported by two witnesses for the defendant, have indisputably shown that the breaks in the corners of the frame threw such additional strain upon the flange at the point where the crossbar joined the frame that the walk was materially weakened and rendered thereby unsafe and dangerous. Buckley v. Kansas City, 156 Mo. 27. (2) In the inquiry whether plaintiff has a case to go to the jury, he is entitled to every fair and reasonable inference from the evidence he has produced, as well as to the full benefit of all the positive facts he has elicited. James v. Life Assn., 148 Mo. 15; Baldwin v. City of Springfield, 141 Mo. 205; Young v. Webb City, 51 S.W. 709; Buesching v. Gas Light Co., 73 Mo. 231. (3) Knowledge of the construction of this walk which was imputed to the city, as a matter of law, and actual or constructive knowledge of the broken corners of the frame, put the city upon inquiry and reasonable care and prudence demanded at least an inspection. Russell v. Columbia, 74 Mo. 480; Jegglin v. Roeder, 79 Mo.App. 428; Haniford v. Kansas City, 103 Mo. 172; Young v. Webb City, 51 S.W. 709; Carrington v. St. Louis, 89 Mo. 208; Squires v. Chillicothe, 89 Mo. 226; Maus v. Springfield, 101 Mo. 613; Benjamin v. Railway, 133 Mo. 274; Bonine v. City of Richmond, 75 Mo. 437; Jegglin v. Roeder, 79 Mo.App. 428; Village of Rockport v. Richarts, 81 Ill.App. 533; Snyder v. City of Albion, 113 Mich. 275; Riley v. Iowa Falls, 83 Ill. 761. (5) If the duty of the city is measured by the standard of reasonable care, and anything short of reasonable care is negligent, then it follows that defects are not hidden or latent if they are discoverable by the exercise of reasonable care. City of La Salle v. Porterfield, 138 Ill. 114; Vanderslice v. City of Phila., 103 Pa. St. 102; Wills v. Vilage of Mendon, 108 Mich. 251; Village of Fairbury v. Rogers, 98 Ill. 554. (6) Complaint is made that the court erred in admitting testimony as to defects in the walk other than the defects that caused the injury. Kuntsch v. City of New Haven, 83 Mo.App. 174; Sidekum v. Railroad, 93 Mo. 400, 405; Smallwood v. City of Tipton, 63 Mo.App. 234; Snyder v. City of Albion, 113 Mich. 275; Wills v. Village of Mendon, 108 Mich. 251; Haynes v. City of Hillsdale, 113 Mich. 44; Show v. Village of Sun Prairie, 74 Wis. 108; Chacy v. City of Fargo, 5 N.D. 173; Lyons v. City of Red Wing, 78 N.W. 868; Riley v. Town of Iowa Falls, 83 Iowa 761; Ledgerwood v. City of Webster, 61 N.W. 1089; Bailey v. City of Centerville, 93 Iowa 726; City of Shelby v. Brank, 61 Ill.App. 153; Noyes v. Gardner, 147 Mass. 505. (7) There was no error in permitting the expert witness Hedrick to testify that at the time of the accident the walk was not safe for the uses to which it was put, because of the four broken corners of the frame. Benjamin v. Railway, 50 Mo.App. 602; Cobb v. Railway, 149 Mo. 609; Helfenstein v. Medart, 136 Mo. 595; Hurst v. Railway, 163 Mo. 309; Boettger v. Iron Co., 124 Mo. 87; Turner v. Haar, 114 Mo. 335; O'Rourke v. Railway, 142 Mo. 342; Badgley v. St. Louis, 149 Mo. 122.

OPINION

SMITH, P. J.

--This is an action to recover damages, the constitutive facts of which are alleged in the petition to be that one William M. Hall was the owner of the premises numbered 818 Walnut street in Kansas City; that he had caused an areaway to be excavated under the sidewalk adjoining said building in front; that the 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 eyes," which construction was known to the defendant; that the defendant so carelessly and negligently conducted itself in reference to said portion of said sidewalk that the same on the sixth day of July, 1895, and for a long time prior thereto, was carelessly and negligently suffered to remain in a dangerous, defective and unsafe condition in this: that the flanges upon which said iron plates rested on said sixth 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 the said defendant or might by the exercise of ordinary care on its part have been known to it, and which could not be discovered with due care by plaintiff; that on said day and year while lawfully standing upon the portion of said sidewalk constructed as aforesaid of iron plates set in iron frames and containing small glass lights, said iron plates gave way and fell by reason of the said rusted, cracked and broken flanges, and precipitated plaintiff into said areaway, etc.

The answer contained a general denial with which was united the plea of contributory negligence.

The main facts, as disclosed by the evidence and about which there is very little dispute, are that Mr. Hall excavated the sidewalk in front of his building to the depth of sixteen feet; that he covered the excavation with stone up to about three and a half feet of the building line and the intervening three feet and a half space he covered with a sidewalk made of iron and glass constructed in this manner: a frame of iron seven feet long by three and a half wide was set in the side-walk resting on the east side in a groove cut in the stone composing the balance of the walk and on the west side, next to the building, upon an iron girder running parallel with the front of the building. The entire sidewalk in front of the building was constructed in this manner, the frames resting in the groove in the stone so as to make the whole sidewalk level. The frame in question here was subdivided by crossbars of iron into four plates forty inches long by twenty-two wide, and resting upon flanges at the sides of the frames and crossbars about an inch and a half wide. These plates were made of iron and had round holes in them in which were fitted prismatic lights made of glass.

At the time stated in the petition the plaintiff was standing on the sidewalk so constructed as aforesaid, when suddenly and without warning it gave way, whereby he was precipitated into the areaway below and seriously injured, the two north plates and the crossbar on which they in part rested falling in. The latter broke off close to the sides of the frame, and the flange on the frame next to the building broke off for about eight inches commencing at the point where the crossbar joined the frame and extending towards the northwest corner of the frame. As originally constructed the frame and crossbars were all moulded together.

About a year before the happening of the injury complained of here, the frame was cracked clear across the corners at the "miter joints" and these cracks could be seen by any one while standing on the sidewalk. About that time Mr. Hall had the sidewalk examined and had stopped the cracks in the frame with oakum and pitch to prevent leakage and it was then discovered, by those doing the work, that a crossbar, ten or twelve feet south of the place where the accident happened, was broken. This had no connection with the break causing the injury, for that crossbar and that part of the sidewalk did not give way. This crossbar was allowed to remain in its broken state until after the injury, when it was patched up with wrought iron. The frame, though cracked at the four corners, as already stated, did not fall at the time of the plaintiff's accident, but it was discovered after the injury that the break in the flange which caused the plates to fall, was partly an old one.

There was no evidence tending to show that the defendant had actual notice of the cracked or broken conditions of the flanges on which the plates rested. The defendant's sidewalk inspector had not, for at least a year before the accident, inspected the sidewalk along there. It is in effect conceded that an inspection from the surface of the sidewalk would not have disclosed the crack or break in the flange, but that it could have been discovered by lifting the plates or by an examination made from the areaway below.

There has been two trials and in each of which the plaintiff had judgment. The first case was taken by defendant to the Supreme Court where the judgment was reversed and cause remanded. The judgment on the second trial being for only three thousand...