Diamond v. Kansas City

• Decision Date: 02 July 1906
• Citation: 96 S.W. 492,120 Mo. App. 185
• Parties: DIAMOND v. KANSAS CITY.
• Court: Missouri Court of Appeals

96 S.W. 492

120 Mo. App. 185

DIAMOND v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

Rehearing Denied October 1, 1906.

MUNICIPAL CORPORATIONS—DEFECTIVE SIDEWALKS —CONTRIBUTORY NEGLIGENCE.

One who, on an exceedingly dark night, when there are no lights, goes over a sidewalk, which he has regularly traveled twice a day, and in which for a month there have been three transverse openings, six to eight inches wide, is guilty of contributory negligence, where he proceeds at the ordinary gait employed by him in the daytime, without feeling his way with his feet, and without taking hold of a hand rail at the side of the walk.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Henry Diamond against Kansas City. Judgment for plaintiff. Defendant appeals. Reversed.

Edwin C. Meservey and Francis M. Hayward, for appellant. Walsh & Morrison, for respondent.

JOHNSON, J.

Action for damages resulting from personal injuries alleged to have been caused by a negligent defect in a public sidewalk. A verdict was returned in favor of plaintiff in the sum of $5,000. He remitted $500, and judgment was entered for $4,500, from which defendant appealed.

The injury was inflicted March 24, 1903, at about midnight, on Allen avenue, between Eighteenth and Nineteenth streets, in Kansas City. This street ascends from the west bottoms to the top of the bluff in a northerly direction. At the time mentioned the roadway for vehicles was unimproved, rough, and muddy. Immediately west of this roadway, and running parallel to it, the city maintained a board sidewalk. Owing to the sharp declivity of the hillside, the sidewalk was a causeway, the west side of which was four or five feet above the ground. It was about five feet wide, and had been provided on each side with a hand rail; but plaintiff stated that at the place where he fell there was no rail on the east side. The floor of the structure consisted of planks, six or eight inches wide, laid across and nailed to stringers running with the course of the sidewalk. At several places a plank had become detached and removed, and it was in one of the openings thus made in the floor that plaintiff stepped and fell.

Defendant contends that its instruction in the nature of a demurrer to the evidence should have been given, on the ground that plaintiff was, in law, guilty of contributory negligence. Plaintiff lived on the top of the hill, and worked as a switchman in the railroad yards in the bottoms. In going to and from his work he traveled this sidewalk twice a day. He worked at night, and generally carried his switchman's lantern with him. He knew of the defective condition of the sidewalk, that two or three planks were missing in the space of several hundred feet and that part of one of the hand rails was gone, but did not remember the exact location of the particular opening into which he fell. He went to work in the evening of the day of his injury, but after arriving at the yards permitted another switchman just employed by the company to take his place for that night and loaned him his lantern. In returning home, Allen avenue offered the...