Coulter v. The City of Independence
| Decision Date | 03 March 1913 |
| Citation | 154 S.W. 860,168 Mo.App. 710 |
| Parties | LUCY COULTER, Respondent, v. THE CITY OF INDEPENDENCE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Case affirmed.
Allen E. Southern for appellant.
C. M Carroll and L. T. Dryden for respondent.
--Damage suit for injuries sustained in consequence of a fall upon a defective plank sidewalk.
The stringers under the sidewalk had rotted and the planks nailed across the stringers had decayed so that the nails no longer held, and the planks were loose.
Plaintiff was walking with her thirteen-year-old son at her side. The son stepped on a loose board which tipped up in time to catch plaintiff's foot and throw her to the ground, spraining her wrist and perhaps otherwise injuring her.
Defendant asks a reversal on the ground that the petition does not state, nor the evidence show, that the street or sidewalk where the injury occurred was one which the defendant was under any obligation to keep in repair.
We do not agree with defendant in this. It is true the petition does not contain the allegation "that it was the duty of defendant to keep the street in a reasonably safe condition for travel" in those words; but it does allege the facts, from which, if the facts are true, that duty follows as a necessary legal consequence. The statement found in many such petitions that "it was the duty of the defendant to at all times keep the street in reasonably safe condition" is in reality a legal conclusion arising from the other facts pleaded, and if those facts are so pleaded as to necessarily raise the conclusion on the face of the petition, the pleading is good even if the above quoted allegation is not stated in so many words. The cited case of Field v. Railway, 76 Mo. 614, does not militate against this view. There no facts were alleged showing any legal obligation on defendant to do what plaintiff complained of its omission to do, and "when a suit is for a breach of duty, the facts out of which it arises must be pleaded;" l. c. 616.
Nor does the petition fail to allege that the street in question or the sidewalk, was one over which the city had jurisdiction or control, or that the sidewalk was not reasonably safe for travel in the ordinary modes; or that the defendant had actual or constructive notice in ample time to have repaired the defect before the injury, had it exercised ordinary care and diligence.
The petition, after alleging the corporate existence of the defendant as a city of the third class, the existence of the sidewalk and street as a public traveled street in said city, and that Dodgeon street, on which the injury occurred, runs north and south and Farmer street intersects it running east and west, proceeds as follows: "That on the 26th day of October, 1910, and for a long time prior thereto, there was on the west side of said Dodgeon street and north of the point where said street intersects said Farmer street, and in front of what is known as the "Cromwell property" a wooden, board or plank sidewalk. That said sidewalk at said point on the 26th day of October, 1910, and for a long time immediately prior thereto was in a dangerous and defective condition in this: That said walk had become rotten and decayed, and the boards or planks in said walk loose; that said walk had been in such condition for such a length of time immediately prior to the said 26th day of October, 1910, as that defendant through its agents, servants, and employees, could by the exercise of ordinary care have discovered the same in time to have repaired and made said walk at said point reasonably safe for travel in the ordinary modes of travel, and that defendant through its agents, servants and employees knew, on the 26th day of October, 1910, or, by exercise of ordinary care and caution might have known, of the unsafe and dangerous condition of said walk in time to have repaired the same.
"That on the said 26th day of October, 1910, while the plaintiff was walking and properly and lawfully passing along and over said board or plank sidewalk, at the point aforesaid on said Dodgeon street and while herself in the exercise of ordinary care and caution, and by reason of the carelessness and neglect of the defendant as aforesaid, she the said plaintiff, was...
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