Denny v. City of Puxico

• Decision Date: 03 March 1928
• Docket Number: No. 4230.,4230.
• Court: Missouri Court of Appeals
• Parties: DENNY v. CITY OF PUXICO.

4 S.W.2d 475

DENNY v. CITY OF PUXICO.

No. 4230.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Rehearing Denied April 7, 1928.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Earnest Denny against the City of Puxico. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Henson & Woody, of Poplar Bluff, for appellant.

Wammack, Welborn & Cooper, of Bloomfield, for respondent.

COX, P. J.

Action for damages for personal injury. Trial by jury; verdict and judgment for plaintiff for $500. Defendant appealed.

Plaintiff's injury is alleged to have been caused by the negligence of defendant in leaving a ridge across a public street or highway over which a horse ridden by plaintiff stumbled and fell, and, in the fall, fell on plaintiff and broke his leg.

The petition alleges that Richardson avenue is a public street and highway running east and west, the north part of which is a street in the city of Puxico and the south part of said street or highway is a public road; that the city dug a ditch across this street or highway and placed a drain pipe therein; that, at the time of the alleged injury to plaintiff, the north part of the ditch had been filled up and the dirt piled up about 12 inches higher than the street level, thus leaving an abrupt ridge about 12 inches high across the highway, which it is alleged was dangerous and liable to cause animals traveling thereon to stumble and fall; that no light was placed there at night so the obstruction could be seen; and that, while plaintiff was riding on horseback along said highway at night when it was dark and the obstruction could not be seen, the animal on which he was riding stumbled over the ridge of dirt placed by defendant across the road and fell, and caused plaintiff's right leg to be broken.

The answer admitted the incorporation of the city, and denied generally the other allegations of the petition. The answer contained this further allegation:

"Further answering, defendant states that it used due care in the construction of the drain described in plaintiff's petition, and performed the work in the usual and customary method, and left nothing in or across the street or highway except such earth as had been excavated from the ditch preparatory to laying a drain pipe therein, and which earth was necessary to refill said ditch to restore said street or highway to the previous condition thereof."

The answer also alleged that, if plaintiff was injured, it was the result of an unavoidable accident.

Plaintiff's evidence tends to show that plaintiff was going into Puxico, riding a mare 8 years old, which was shown to be a sure-footed animal. She was traveling in a fast walk, and stumbled and fell, and fell on plaintiff and broke his right leg. The contention of plaintiff is that the mare stumbled over the ridge in...