O'Connell v. Kansas City

• Decision Date: 13 June 1921
• Citation: 231 S.W. 1040,208 Mo.App. 174
• Parties: DELLA O'CONNELL. by next friend, JAMES L. SHEPARD, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

231 S.W. 1040

208 Mo.App. 174

DELLA O'CONNELL. by next friend, JAMES L. SHEPARD, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

June 13, 1921

Appeal from the Circuit Court of Jackson County.--Hon. Thos. J Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

Rogers & Yates for respondent.

E. M Harber and Francis M. Hayward for appellant.

OPINION

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 1725 and defendant has appealed.

The facts show that on August 12, 1919, plaintiff, a girl fifteen or sixteen years of age, was injured while walking in the nighttime over the sidewalk portion of a bridge across Turkey Creek. This bridge was maintained by the defendant as a highway at Thirtieth Street and Southwest Boulevard in Kansas City, Missouri. Plaintiff's left foot and left limb went through a hole in the bridge to a point in the region of her knee, causing her to fall and to strike her left hand and wrist.

The petition charges that defendant--

". . . maintains and operates public streets, sidewalks and highways within the said Kansas City, and particularly at and near Thirtieth Street and Southwest Boulevard, at which place the defendant maintains and operates a sidewalk or footbridge across Turkey Creek.

"Plaintiff states that the said sidewalk or footbridge was on the 12th day of August, 1919, and for a long time prior thereto, maintained by the defendant for the purpose of permitting pedestrians to walk upon and travel over the same in a dangerous, unsafe and insecure condition. Which said sidewalk or footbridge was not reasonably safe for persons while traveling over the same, in ordinary modes.

"Plaintiff states that on said date and at about the hour of 11 p. m. while she was walking along over and upon said sidewalk or footbridge and without any knowledge of the dangerous, unsafe and insecure condition thereof, she stepped into a hole in the sidewalk or foot-bridge and then and there by reason of the aforesaid dangerous, unsafe and insecure condition, plaintiff was caused to fall, whereby she was seriously and permanently injured and crippled."

Defendant insists that "The court erred in not sustaining defendant's objection to the introduction of any evidence because plaintiff's petition stated no cause of action whatever, and in overruling defendant's motion in arrest of judgment." In support of this contention defendant urges that there is no allegation in the petition of negligence on the part of defendant, "no allegation that the city had either actual or constructive knowledge of a defect in the sidewalk from which negligence could have been inferred." There was no demurrer to the petition but defendant answered.

An attack upon the petition such as was made in the trial court is not looked upon with favor. Under the circumstances we are required to give a liberal construction to the petition and if it states any cause of action whatever, we must hold it good although the cause of action may be defectively stated. [Peters v. Kansas City Rys. Co., 224 S.W. 25, 27.] And we must construe the allegations of the petition in their most favorably light to the plaintiff and if the existence of an elemental fact is not expressly stated but may be said to follow as a necessary implication from the facts alleged, the petition should not be adjudged insufficient to support a verdict. [Wilson v. St. Joseph, 139 Mo.App. 557, 561, 123 S.W. 504; Hurst v. The City of Ashgrove, 96 Mo. 168, 172; Chance v. City of St. Joseph, 195 Mo.App. 1, 5, 190 S.W. 24.]

The petition alleges that "said sidewalk or footbridge was on the 12th day of August, 1919, and for a long time prior thereto, maintained by the defendant . . . in a dangerous, unsafe and insecure condition."

"The word 'maintain' does not mean to provide or construct, but means to keep up; to keep from change; to preserve (Worcest, Dict.); to hold or keep in any particular state or condition; to keep up (Webst. Dict.)

In Moon v. Durden, 2 Exch. 21, it was said: 'The verb 'to maintain,' . . . signifies to support what has already been brought into existence." [Verdin v. The City of St. Louis, 131 Mo. 26, 87, 33 S.W. 480; Barber Asphalt Paving Co. v. Hezel, 155 Mo. 391, 399, 56 S.W. 449.]

"The word 'maintain,' used as a verb, does not mean to provide or construct, but, as defined by lexicographers, means to keep up, to keep from change, to preserve. Worcester's Dictionary. To hold or keep in any particular state or condition, to keep up. [Webster's Dictionary.]

In the case of Moon v. Durden, 2 Exchequer R. 21, it was said: "The verb 'to maintain,' in pleading, has a distinct technical signification. It signifies to support what has already been brought into existence." [The Louisville, New Albany & Chicago Ry. Co. v. Godman, 104 Ind. 490, 492, 4 N.E. 163; Kendrick & Roberts v. Warren Bros. Co., 110 Md. 47, 72, 72 A. 461.]

"Webster's Dictionary, which has become in effect a law book on questions of construction, defines the word 'maintain' as follows: 'To hold, preserve, or keep in any particular state or condition; to sustain; not to suffer to fail or decline.'" [Brenn v. City of Troy, 60 Barbour's R. 417, 421; Boston v. Mayor, etc. of N. Y., 10 Barbour's R. 223, 236; Kovachoff v. St. Johns Lumber Co., 61 Ore. 174, 180, 121 P. 801.]

The petition in this case alleges that the city "maintained" the sidewalk in a dangerous, unsafe, insecure and not reasonably safe condition. From the foregoing definitions of the word "maintain" it is apparent that to maintain a defect means something more than mere notice or even knowledge of the defect. It means keeping up, preserving or continuing the defective condition and suggests some active participation in the matter of continuing the condition. So we think that the fact that the city had notice of the defect in the sidewalk may be said to follow as a necessary implication from the facts alleged in the petition, and the petition is good after verdict under the circumstances present in this case.

During the trial the following occurred--.

"Q. Just come over here, please, and let the jury see it?

"MR. HAYWARD: I object to that, Your Honor.

"MR. ROGERS: I offer to exhibit the injury on the wrist to the jury.

"THE COURT: Proceed.

"To which ruling and action of the court the defendant by its counsel then and there duly excepted.

"Q. Just let the gentlemen see it.

"Plaintiff here steps down to the jury, and walks up and down before the jury; and the jury examines and feels of plaintiff's wrist."

It is insisted that the court erred "in permitting the jury to feel of plaintiff's wrist, thereby exciting the sympathy of the jury in plaintiff's behalf, and increasing the size of the verdict, which was excessive." We think that defendant is in no...