Chance v. City of St. Joseph

• Citation: 190 S.W. 24,195 Mo. App. 1
• Decision Date: 27 November 1916
• Docket Number: No. 12153.,12153.
• Parties: CHANCE v. CITY OF ST. JOSEPH.
• Court: Court of Appeal of Missouri (US)

190 S.W. 24

195 Mo. App. 1

CHANCE v. CITY OF ST. JOSEPH.

No. 12153.

Kansas City Court of Appeals. Missouri.

November 27, 1916.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

Action by Frances Chance against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles L. Faust, City Counselor, and Merrill E. Otis, First Asst. City Counselor, both of St. Joseph, for appellant. Duvall & Boyd and Mytton & Parkinson, all of St. Joseph, for respondent.

JOHNSON, J.

Plaintiff, the widow of Henry Chance, deceased, sued to recover damages for the death of her husband, which she alleges was caused by negligence of defendant in failing to maintain a barricade across the end of a public street, which ended at the crest of a precipitous declivity. The petition alleges:

"That at all the times herein mentioned Elwood street and Belmont street were public thoroughfares and streets running north and south and paralleling each other in the city of St. Joseph, with no other street running north and south between them; that at all the times herein mentioned Poulin street was a public thoroughfare and street running east and west in the city of St. Joseph, and intersecting Elwood and Belmont street; that on the 11th day of January, 1913, Henry Chance, deceased, while in the exercise of ordinary care was driving west on Poulin street, between Elwood and Belmont streets, and was precipitated over a high bluff to the ground beneath as he drove west in Poulin street, west of Elwood street and east of Belmont street; that he was precipitated over said high bluff to the ground beneath on account of and by reason of the negligence of the defendant city in maintaining said street, thrown open by the city for travel by the public, in a dangerous and unsafe condition, in that said street was maintained so that the roadway thereof in traveling west on said street between Elwood and Belmont streets led to a precipitous embankment, which rendered said street dangerous and unsafe for pedestrians and persons driving thereon, and carelessly and negligently maintained said street in said condition, without any guards or rails or barriers, or notice or warning of any kind or character, to notify the public of the existence of said precipitous embankment on said street," etc.

The answer is a general denial and a plea of contributory negligence. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $6,000, and defendant appealed.

The injury which resulted in the death of plaintiff's husband occurred near 10 o'clock in the evening of January 11, 1913, at the west end of Poulin street, in St. Joseph. That street runs east and west, is 50 feet wide, and is in Bellevue addition, which was platted in 1858. Going west from Prospect avenue, which runs north and south along the base of a river bluff, it runs 800 feet or more up the east side of the bluff and ends at the summit, being intersected in turn by Bellevue and Elwood streets. The distance from the west line of Elwood to the end of Poulin is not to exceed 150 feet. There is a residence on the northwest corner of Poulin and Elwood, and a small dwelling house in the middle of Poulin, at the end of that street. That house was built many years ago, with the permission of the city and after the grading of Poulin street, which was done 25 or 30 years before the date of the injury. The distance from the south side of the house to a ditch near the south line of Poulin street was 10 or 12 feet, and there was a covered cistern in this space. The evidence of plaintiff tends to show there was some travel on the street by delivery wagons and by others who drove to the end of the street and turned back in front of the house. No one could drive past the house without going over the bluff, since the declivity began immediately at its rear. There had been a fence from the house to the south line of the street, but it had disappeared, and there was nothing to prevent a horse and wagon from passing on the south side of the house to the edge of the bank which formed the west side of the bluff.

Chance lived in the "French Bottoms" northwest of the city, and in going to and from the city usually drove along Prospect avenue, the main traveled way. He had been in the city during the day, had visited a number of dramshops, and the evidence strongly tends to support the conclusion that, if not intoxicated, he was, to some extent, under the influence of liquor. In going home he approached Prospect avenue from the east on Poulin street, and instead of turning north on Prospect, as he should have done, continued west up the hill, and, when he reached the house in the street, drove around the south side, over the cistern cover which was level with the surface, and to and over the edge of the bank. The next morning he was found unconscious at the foot of the bank, and two days later he died.

His course up Poulin street and past the house was traced in the snow, which had freshly fallen and which concealed the cistern cover and the fact that all travel on that street ended in front of the house. The night was clear, but there was no moonlight, and no street lights were in that vicinity. The house in the street was about 17 feet wide and 11 or 12 feet deep. Its builder, introduced as a witness by plaintiff,...