Canterbury v. Kansas City
| Decision Date | 03 October 1910 |
| Citation | 131 S.W. 120,149 Mo.App. 520 |
| Parties | JOHN M. CANTERBURY, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.
AFFIRMED.
Judgment affirmed.
John T Harding, James E. Nugent and Hunt C. Moore for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence at the close of plaintiff's testimony and at the close of all the testimony, for the reason: (a) That the fall of plaintiff's wife occurred in broad daylight and the obstruction which plaintiff's wife claims caused the fall was in full view of her. There was nothing to distract her attention. In fact, she states that she saw the obstruction of which complaint is made and attempted to pass over it and fell, and we contend she was guilty of negligence per se. City of Quincy v. Barter, 81 Ill. 300; City of Erie v. Magill, 101 Pa. 616; Coffey v Carthage, 186 Mo. 585; Heberling v Warrensburg, 103 S.W. 36; Womack v. St. Joe, 168 Mo. 241; Sindlinger v. Kansas City, 126 Mo. 315; Boyd v. Springfield, 62 Mo.App. 456; Cohn v. Kansas City, 108 Mo. 393; Ray v. Poplar Bluff, 70 Mo.App. 261; Woodson v. Kansas City et al., 123 S.W. 820; Wilson v. Charleston, 8 Allen 137; Centralia v. Crouse, 64 Ill. 19; Durkin v. Troy, 61 Barb., 437; Wheat v. St. Louis, 179 Mo. 572; Yahn v. Ottumwa, 60 Iowa 429; Kaiser v. St. Louis, 185 Mo. 374.
Battle McCardle and John C. Stearns for respondent.
(1) A pedestrian must be safeguarded in crossing a sidewalk the same as in traveling lengthwise thereon. Powers v. City of St. Joseph, 91 Mo.App. 54; Bentley v. Tel. Co., 125 S.W. 533. (2) A pedestrian has a right to leave a sidewalk and to get upon it at a point other than at a public crossing. A court by an instruction may not declare it negligence per se. Plummers v. Milan, 79 Mo.App. 439. (3) It is not contributory negligence for one to walk along a sidewalk known to him to have a dangerous obstruction therein. Nor does the law preclude a recovery in a case where it is shown that by taking the other side of the street the pedestrian might easily have avoided the accident. Graney v. City of St. Louis, 141 Mo. 180. (4) It is the duty of a city to keep its streets in a reasonably safe condition for public travel, and this includes the space between the sidewalk and the street curbing, which should be kept free from obstruction, or the city will be liable. Fockler v. City of Kansas City, 94 Mo.App. 464; Coffee v. City of Carthage, 186 Mo. 573; Haxton v. City of Kansas City, 190 Mo. 53.
This is a suit prosecuted against the defendant city for damages resulting to plaintiff from personal injuries sustained by his wife in consequence of the negligence of the defendant. The cause was here before on the appeal of plaintiff from a judgment sustaining a motion for a new trial filed by defendant and we affirmed that judgment (130 Mo.App. 1). Another trial resulted in a verdict and judgment for plaintiff for $ 500, and the cause now is before us on the appeal of defendant whose sole contention is that the jury should have been peremptorily instructed to return a verdict for defendant.
The injury occurred on the morning of January 18, 1905, at the west end of the Twelfth street cable line in Kansas City which then was at Sixteenth and Genesee streets. Plaintiff's wife, an elderly and heavy woman, was injured at that corner while en route by cable car to Armourdale. To take that trip she had to transfer from the Twelfth street line to the Armourdale line, the northern or eastern terminus of which was at Sixteenth and Wyoming streets, one block east of Genesee street. The Twelfth street cars made a loop around the corner of Sixteenth and Wyoming streets, but according to the evidence of plaintiff, the end of the line was at Sixteenth and Genesee streets and all passengers were expected to leave the cars at that point. Ordinarily passengers for Armourdale walked from Genesee street to Wyoming street. The point where the cars stopped to discharge passengers was in Genesee street about one hundred feet north of Sixteenth street. The car which carried the wife of plaintiff stopped there and she alighted and proceeded to follow what the evidence of plaintiff depicts as the beaten path of Armourdale passengers. It was the custom of such passengers to go to the nearest sidewalk, i. e., that on the west side of Genesee street, and thence go south to the corner of Sixteenth street. That sidewalk was along the east side of the stockyards. The sidewalk space was twelve feet wide and the sidewalk proper which occupied the middle of the space was six feet wide, and the space between it and the curb was a parkway three feet wide. Seven inches of snow had fallen about three weeks before the injury and during the intervening period there had been more snow and some freezing and thawing weather. The snow had been cleaned off the pavement of Genesee street and some had been banked up along the curb on the west side. The sidewalk had not been cleaned and the alternate thawing and freezing combined with the use of the way by many pedestrians had given the sidewalk an uneven and lumpy covering of ice and snow and slush. Mrs. Canterbury stepped upon the curb and took another step forward toward the sidewalk. She states, "I seen I was in a bad place--it was so snowy and icy and I stood and looked for a minute before I started to go and then I made the next step with my right foot and it slipped and I fell." ...
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