Cohn v. City of Kansas

• Decision Date: 22 December 1891
• Citation: 18 S.W. 973,108 Mo. 387
• Parties: COHN et al. v. CITY OF KANSAS.
• Court: Missouri Supreme Court

18 S.W. 973

108 Mo. 387

COHN et al. v. CITY OF KANSAS.

Supreme Court of Missouri, Division No. 1.

December 22, 1891.

DEFECTIVE STREETS — CONTRIBUTORY NEGLIGENCE — DEGREE OF CARE.

1. A person who, in daylight, undertakes to pass by an excavation in the middle of a street, which is perfectly obvious, instead of crossing the street and taking the other sidewalk, which is unobstructed and safe, is guilty of contributory negligence, and cannot recover for injuries received from falling into the excavation.

2. In a suit for such injuries, it is error to charge that plaintiff's knowledge of the condition of the street would not prevent a recovery, if she used such care as "persons ordinarily use under like circumstances." The word "prudent" should qualify "persons."

Appeal from circuit court, Buchanan county; O. M. SPENCER, Judge.

Action for personal injuries by Lena Cohn and her husband against the city of Kansas. Judgment for plaintiffs. Defendant appeals. Reversed.

R. L. Yeager and W. S. Cowherd, for appellants. Sherry & Hughes, for respondent.

BLACK, J.

Lena Cohn and her husband brought this suit against the city of Kansas and the Grand-Avenue Railway Company to recover damages for injuries which she received from falling into an excavation in a street, made by the railway company under authority from the city. The important averment of the petition is that both defendants negligently permitted the excavation to remain in the street without guard-rails to protect persons from falling into it. The defendant dismissed as to the railway company, and the plaintiff took a change of venue to Buchanan county, where there was a verdict and judgment for plaintiff against the city.

At the time of the accident the railroad company had made an excavation on Grand avenue, a street in the city of Kansas, for the purpose of placing therein the machinery to connect the street cable road with the engine-house. The excavation was some 30 or 35 feet wide, and extended out from the west side of the street to the middle thereof, a distance of some 50 feet. There was a space of one or two feet between the end of the excavation at the middle of the street and a street-railroad track. There was no barrier or other protection at this end of the excavation. There was room on the east side of the street for wagons to pass, and the east sidewalk was wide, and entirely free from obstruction; and this was known to the plaintiff, for she passed south on that sidewalk shortly before the accident. On her return she came north on the west sidewalk. She says that sidewalk was all torn up at the excavation; that she went around the hole where the men were digging in the ground; that "the car came, then a loaded wagon and a buggy, and they were so crowded that I was pushed in; that was the way I was pushed in. I had no place to catch hold of, and there was no fence or nothing; and I was thrown down between the wagon and the buggy, and they pushed mein." Again she says: "I saw lots of people passing by, and so I passed by." That she followed the hole around. On the part of the defendant the evidence is to the effect that the west sidewalk was barricaded; that persons going on that sidewalk passed over the street to the east sidewalk when they came to the excavation; that the plaintiff started around, and on her way asked one of the laborer if she could go "by there," and he said, "No," to cross over to the east sidewalk; that she went ahead, and the man called to her, saying the paving blocks were loose and she might fall; that she went on around the east end of the excavation, between that and the street-car tracks; that a man with a long plank on his shoulder was going south, followed by a wagon; that this man saw her, and told her to go back, but she did not obey him; that the wagon struck the plank, and threw the man, the plaintiff, and the plank into the hole, near the north-east corner thereof, where it was seven or eight feet deep; that there were a number of men at work in the excavation, loading a wagon; that barriers or lights were placed around the hole at night, but were removed in the day-time, to enable the men to work; and that there was no temporary sidewalk around the excavation. Several eye-witnesses...