Coy v. Kansas City, Mo.

• Decision Date: 12 June 1922
• Docket Number: No. 14394.,14394.
• Citation: 243 S.W. 418
• Parties: COY v. KANSAS CITY, MO.
• Court: Missouri Court of Appeals

243 S.W. 418

COY v. KANSAS CITY, MO.

No. 14394.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Rehearing Denied July 3, 1922.

Appeal from Circuit Court, Jackson County; Charles A. Pence, Judge.

"Not to be officially published."

Action by Hattie Coy against Kansas City, Mo. From a judgment for plaintiff, defendant appeals. Reversed.

E. Harbor and Ilus M. Lee, both of Kansas City, for appellant.

Milton J. Oldham, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action is to recover damages received in a fall upon an icy sidewalk, breaking her arm. Nine jurors found for her and returned a verdict of $2,500. Defendant, unsuccessful in its efforts to prevent a judgment being rendered therein in her favor, has appealed.

At the conclusion of the testimony in. plaintiff's side of the case, defendant offered a demurrer to the evidence, and when it was overruled declined to introduce any testimony. Whether plaintiff made any case entitling her to go to the jury is therefore the most important Question herein.

Plaintiff's own testimony, and that offered in her behalf, shows the following state of facts:

She was walking west on Twelfth street in company with a companion, another lady, both on their way to their work in a laundry. Her fall occurred about 9:45 o'clock in the morning of December 9, 1919. It was "perfectly daylight." Plaintiff was 39 years old, had good eyesight, and said there was nothing that prevented her from seeing the sidewalk, and, in answer to the question whether she was paying any attention to the sidewalk as she walked along, she said, "No, sir; not much. Q. You were not. A. No, sir." She was going down hill, though there was not much of a decline at that place. The sidewalk was eight feet wide and possibly more. On direct examination plaintiff testified that—

"It had rained and sleeted and then where it thawed and melted, it froze again at night, and that night there had come a snow, I should judge an inch or an inch and a half of snow, and you couldn't see the condition of the ice at all, and it was rough and uneven and full of ridges."

Later she said it had snowed some few days before, and the thawing and freezing had caused ice to form there, and evidently the reference in the first statement to the thawing and melting and subsequent freezing has reference to snow, rather than to rain or sleet.

From the general statement above, it might readily be inferred that there was,. at the one place where she fell, a formation of snow and ice caused by snow changed into ice by being compacted or by melting and then freezing, and that, as this was "rough and uneven," it constituted at that place an obstruction or defect for which the city would be liable, and which the snow of the night before covered and hid so that plaintiff could not see it, and consequently all these things would make a case for the jury. But when plaintiff and her witnesses were called upon to specify and explain the facts sustaining such general statement, it is manifest that no such situation is presented. The facts to which they testify show only the following:

That some four or five days before the fall, there was a snow, which was general in extent, and this snow "kind of thawed in the day and froze at night," and while in a thawing condition or state of slush the footprints of persons walking through it were left therein, and these impressions froze at night, creating the "rough and uneven" condition referred to, and this thawing and freezing converted the melting snow into ice, which was "all over the walk" and over other walks the same way, except, of course, at some places where the snow and slush had been entirely cleaned off. The walks that had not been cleaned "were in the same condition as this walk." It had "thawed at some time before, and the people walking over it when it was in that slushy, mushy condition had left their footprints," and these footprints were all over the sidewalk. Such was the condition at 3:30 the afternoon before plaintiff's fall, and the weather that night turned suddenly colder, and froze the footprints into hard and set form. There was no evidence showing any ridge or elevation such as would constitute any dangerous obstruction. One of plaintiff's witnesses in testifying as to the condition the afternoon before when she passed along, said, "it was just slick then, and there was no snow, and the next morning there was snow." But plaintiff's counsel immediately asked this witness, "That [what] was the condition, rough?" and she then said it was "rough," and later said, "Well, it was `slick and rough.'" "It was slick and kind of rough," and when asked which was it, was it slick or was it rough, answered, "It had the footprints in it where it kind of thawed in the day and froze at night, and didn't have any snow on it."

In describing conditions at the time of plaintiff's fall, the above-mentioned witness said:

It was "slick and rough, real rough.

"Q. When you say rough, you mean it wasn't a perfectly glazed surface, like the windowpane; is that what you mean? A. It had footprints where they had walked and frozen.

"Q. There were footprints where people had walked, and then it was frozen. That's the extent of the roughness? That's what you mean, isn't it? A. Yes, sir.

"Q. So I won't misunderstand you, you mean the roughness was due entirely to footprints? A. There were footprints.

"Q. There was nothing else to make it rough, except where people had tracked over there and had made it rough; is that right? A. Well, it had frozen, and there was snow.

"Q. The snow had not drifted? A. No.

"Q. The snow had fallen and then packed down, hadn't it? A. Yes, sir.

"Q. So that her slipping on the slick ice was what caused her to fall; is that it? A. Yes, sir."

Another of plaintiff's witnesses, a man who passed over the walk in question practically every day, said that snow and ice had been on the walk for several days, ...