Colton v. Kansas City

• Decision Date: 04 March 1912
• Citation: 145 S.W. 494,162 Mo.App. 429
• Parties: MARY C. COLTON, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

145 S.W. 494

162 Mo.App. 429

MARY C. COLTON, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

March 4, 1912

Appeal from Jackson Circuit Court.--Hon. R. B. Middlebrook, Judge.

AFFIRMED.

Order affirmed.

John G Park, Jas. W. Garner and Francis M. Hayward for appellant.

(1) The court erred in setting aside the involuntary nonsuit because the catch basin where plaintiff received her injury was outside the portion of the street dedicated and prepared for travel and had never been thrown open to the public, and the city was under no duty to keep it in repair. Downend v Kansas City, 156 Mo. 60; Ely v. St. Louis, 181 Mo. 724; Atkinson v. Nevada, 133 Mo.App. 1.

Ben T Hardin for respondent.

The court committed no error in setting aside the nonsuit taken by plaintiff, on the ground that the court had erred in sustaining the demurrer interposed by defendant. Benton v. St. Louis, 217 Mo. 687; Snickles v. St Joseph, 155 Mo.App. 308; Curran v. St. Joseph, 143 Mo.App. 618, 620. When the Benton case was shown to the trial judge, he promptly corrected the blunder into which he had been led. He granted the new trial on the facts in evidence. And an appellate court will not interfere with such action of the trial court, unless it is of the opinion that under no circumstances ought the plaintiff to be allowed to recover. Graney v. Railroad, 157 Mo. 666; Seeger v. Silver Co., 193 Mo. 400; Gould v. St. John, 207 Mo. 619; McCarty v. Transit Co., 192 Mo. 396; Johnson v. Grayson, 230 Hawver v. Transit Co., 154 Mo.App. 452.

OPINION

ELLISON, J.

Plaintiff's action is to recover damages for injuries received by stepping upon the lid or cover of a catch basin set in and adjoining the curbing in one of defendant's streets. At the close of the evidence in her behalf, she took a nonsuit in order to avoid a peremptory instruction in defendant's favor. Afterwards, on her motion, the nonsuit was set aside, and defendant appealed.

The street involved in the controversy is Grand avenue, at Twenty-sixth street, the latter not being open west of the former. Grand avenue is paved with asphaltum between the stone curbing. Between Twenty-sixth and Twenty-seventh streets there is no sidewalk on the west side, though it is said that there was unimproved sidewalk space included within the full width of the street as platted. In the west curbing of Grand avenue and opposite where Twenty-sixth street enters from the east, there is a catch basin into which surface water flows from the street and finds its way to the sewers. The basin is set in the curbing, but extends a width of more than two feet beyond into what is said to be the sidewalk space, and it is covered with an iron cover which fits insecurely on the top of the basin. For a considerable distance between Twen-sixth and Twenty-seventh streets a bluff comes up to the curbing, on the west side of Grand avenue, so nearly perpendicular as to prevent any one from going over that space except by walking on the paved street inside the curb. But a few steps before reaching the catch basin, the bluff begins to recede toward the west, leaving room on the outside of the curb for a pathway; and right at the catch basin, pedestrians on the paved street, who desired to do so, stepped up on the iron covering of the basin and proceeded along the path. In other words, the catch basin cover was the first step on the path off of the street going north, as plaintiff was, or the last step on the path onto the street, going the other way.

Plaintiff was coming from Twenty-seventh street, travelling on the west side of Grand avenue over the asphaltum pavement. Whether she intended taking the path when she reached the catch basin, does not appear; but at any rate, just as she got to the basin, she saw an automobile approaching and she immediately stepped up on the cover to avoid it. The cover turned with her and she fell into the basin and received the injuries of which she complains.

In the argument of this case a great deal was said about sidewalks and sidewalk space, and whether the city was duty bound to keep the pathway in reasonably safe condition for pedestrians. A city would be liable for constructing a dangerous place in an unused part of a street where people might pass along and fall into it; as, for instance, an unguarded well. But that is a different proposition from the statement that it is bound to keep by-paths in unimproved and unrecognized parts of streets, in good sidewalk condition for travel. So, therefore, in our opinion (leaving out of view the fact that the city, itself, built the basin), the city was not bound to put that part...