Combs v. City of Kirksville
| Citation | 114 S.W. 1153,134 Mo.App. 645 |
| Parties | JAMES B. COMBS, Respondent, v. THE CITY OF KIRKSVILLE, Appellant |
| Decision Date | 07 December 1908 |
| Court | Court of Appeals of Kansas |
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
Judgment affirmed.
H. F Millan and Weatherly & Fausek for appellant.
(1) The court erred in refusing defendant's demurrer to the evidence at the close of plaintiff's case, and in refusing defendant's demurrer at the close of all of the evidence. We think that the case is clearly covered by Wheat v. St. Louis, 179 Mo. 572; Morrison v Construction Co., 44 Wis. 405; Hays v Railroad, 97 N.Y. 259. (2) A person having knowledge of a defect in a street must use reasonable care to avoid it, and that care must increase in proportion to his knowledge of the risk. Wheat v. St. Louis, 179 Mo. 572; Cohn v. Kansas City, 108 Mo. 392; Marshall v. Belle Plain (Iowa), 76 N.W. 797; Iron v. Saginaw (Mich.), 79 N.W. 572; Beach on Contributory Neg., sec. 250; Reedy v. Brewing Assn., 161 Mo. 537. The fact that plaintiff fell is no evidence defendant was negligent. Carvin v. St. Louis, 151 Mo. 334. The burden is on plaintiff to show due care. Swanson v. Sedalia, 89 Mo.App. 121; Penette v. Kansas City, 162 Mo. 238; Kaiser v. St. Louis, 185 Mo. 366; Rosenthal v. St. Louis, 190 Mo. 213.
Higbee & Mills, George E. McDowell and Campbell & Ellison for respondent.
(1) The court did not err in refusing defendant's demurrer to the evidence at the close of all the evidence. The defense of contributory negligence rested upon the defendant and was properly submitted to the jury by appropriate instructions. There was no evidence tending to prove that plaintiff was not in the exercise of ordinary care when he slipped and fell and sustained his injuries. Heberling v. Warrensburg, 204 Mo. 617; Lattimore v. Power Co., 128 Mo.App. 37; Swanson v. Sedalia, 89 Mo.App. 127; Chilton v. St. Joseph, 143 Mo. 202; Beauvais v. St. Louis, 169 Mo. 503; Loeweer v. Sedalia, 77 Mo. 445; Parrette v. Kansas City, 162 Mo. 251. (2) From the evidence of Tyler Paine and Mayor Craig, the city council had long been familiar with its condition. It was a defective walk and so unskillfully constructed as to increase the danger to pedestrians when covered with snow and ice, and defendant was liable for injuries resulting therefrom with or without notice to the city. Heether v. Huntsville, 121 Mo.App. 495; 5 Thompson on Negligence, sec. 5994.
The plaintiff's suit is to recover damages for an injury alleged to have been the result of the defendant's negligence in the faulty construction and maintenance of one of its sidewalks.
Jefferson street in said city runs east and west and intersects Marion street running north and south. The city, in improving Jefferson street which was sixty feet wide, paved only twenty-four feet with the center six inches higher than the outer edges of the pavement. There was a space on each side of the paved street of twelve feet between the pavement and sidewalks and the sidewalks were each six feet wide. At the intersection of Marion street, the curb makes a quarter-circle to the south and north lines of Jefferson street. Persons passing along Jefferson street, in order to cross Marion street, would have to pass over two of these curbs. When the paving was completed, it left the sidewalk on the south side of Jefferson street about eleven inches lower than the top of the curb. On the same side of the latter street at the intersection of Marion street and west of the west curb, dirt had been placed, making a gradual incline from the top of the curb down to the sidewalk. The evidence differs as to the length of the slope, but it is agreed that it was from three to six feet, and that the fall in the whole distance was eleven and one-fourth inches.
The plaintiff lived in the eastern part of the town and his usual route in going and coming was over this intersection, and he was familiar with its condition. On the afternoon of the 20th of December, 1906, he had passed over the place mentioned, but later, between six and seven o'clock in the evening, he had occasion to pass over it again. On the latter occasion, he slipped and fell on the incline mentioned and was injured thereby.
As to the manner in which he was injured his own evidence must be depended upon solely. He stated that, that he knew when he came to the place and that he raised his foot high enough to go over the curbing. When his foot struck the incline he slipped and fell. There had been snow and rain previously, which had frozen, but had thawed during the day and again become frozen during the evening. The walk, with the exception of the snow, had remained in the same condition for two months before plaintiff's injury. The plaintiff recovered a judgment for $ 2,500 from which defendant appealed.
The defendant offered a demurrer to the plaintiff's case on the close of his testimony and one upon the close of all the testimony. It is of the action of the court in refusing these demurrers that defendant principally complains.
In Wheat v. St....
To continue reading
Request your trial