Dohring v. Kansas City

• Decision Date: 08 February 1935
• Docket Number: No. 32193.,32193.
• Citation: 81 S.W.2d 943
• Parties: DOHRING v. KANSAS CITY.
• Court: Missouri Supreme Court

81 S.W.2d 943

DOHRING v. KANSAS CITY.

No. 32193.

Supreme Court of Missouri, Division No. 1.

February 8, 1935.

Motion for Rehearing Overruled April 17, 1935.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Action by Lydia Dohring against Kansas City, Mo. Judgment for plaintiff, and defendant appeals.

Affirmed.

George Kingsley, City Counselor, and John J. Cosgrove, Asst. City Counselor, both of Kansas City, for appellant.

Atwood, Wickersham & Chilcott, of Kansas City, for respondent.

FERGUSON, Commissioner.

Plaintiff sued for damages for personal injuries caused by falling on a concrete sidewalk in Kansas City. She charged that defendant city had, in the manner described in the petition, "caused and permitted" ice to form upon and extend across the sidewalk, and that as she was "walking upon and over the sidewalk" at that point she was "caused to slip * * * and fall upon" such "formation of ice," and as result thereof suffered the injuries sued for. The cause was tried in the circuit court of Jackson county and plaintiff had a verdict, and judgment thereon, for damages in the sum of $8,000, and the defendant city has appealed.

The evidence as to the injuries is that plaintiff, a married woman, about thirty-nine years of age, sustained a spiral fracture of the tibia of the right leg, a retroverted uterus, a severe shock, and suffered external pain; that her right leg was shortened, the right foot "turned out," and she was unable "to place the right foot squarely upon the ground," and that "for a long period of time" she suffered unnatural menstruation; that she lost weight and was unable to perform her ordinary and usual household duties. Appellant does not claim that the damages allowed are excessive and confines its assignments of error to the giving of plaintiff's instruction numbered 1 and the refusal of the trial court to give two instructions, B and D, offered by defendant. Appellant's contention, which we shall later state, requires that we first have an understanding of the pleadings and evidence.

The plaintiff fell on the sidewalk in front of 4430 Paseo boulevard in Kansas City. Paseo boulevard runs north and south and the two-story or duplex dwelling house owned by Harry Platner, numbered 4430 Paseo, is situate on the west side of that street. The house fronts east, the length being east and west so that one side of the slanting or sloping roof is on the south, the other on the north. It was a distance of about 10 feet from the south side of the house to the south line of the lot which was the north line of a vacant lot adjoining on the south. A bungalow numbered 4432 Paseo, at the time occupied by the Sarazin family, is situate on the next lot south of the vacant lot. The surface of these lots is about 5 feet above the sidewalk and a terrace at the front or east side slopes down to a strip of ground which intervenes between the bottom line of the terrace and the sidewalk along the west side of Paseo. This strip of ground is referred to in the evidence, and will hereinafter be referred to, as "the parking" or "parkway," and while the width thereof is not stated, it appears, from an examination of pictures of the premises in evidence, that it is at least 5 feet, or perhaps more, in width. The surface of the lot at 4430 Paseo, the Platner property, is level and flat. The 10-foot strip or portion of the lot south of the house is inclosed by a concrete wall about 5 inches in width and a foot in height, about 8 inches thereof being above the ground, which at the front or east extends south from the south side of the house, or front steps, along the top of the terrace to the south lot line, thence west along that line to the garage at the rear. There was evidence that water would accumulate in this space and "seep" into the ground. Water from the north side of the roof drained into a downspout, at the northeast corner of the roof, which was connected with the sewer pipe. The water from the south side of the roof drained into a downspout, at the southeast corner of the roof, which connected at the southeast corner of the building with an underground line of "farm" tiling which ran east from that point to, and opened or emptied out onto, the parking west of the sidewalk. This line of tiling was "18 inches to 2 feet" underground and was made of "farm" tile. This "farm" tile, a clay construction, is porous and is principally used in the drainage of land. It was in sections 12 inches in length and 4 inches in diameter. These sections do not have joints or connections, and were laid "end to end" with "about half an inch separation" between the sections. This type of tile "receives" and carries off "seepage." The line of "farm" tiling extended east underground from the southeast corner of the house, where it connected with the downspout which drained the south side of the roof, to the terrace and down under the terrace, the open east end thereof being at, and emptying onto, the west side of the parking. The evidence thus tends to show that the line of tiling received and carried water from two sources, water coming through the downspout from the south side of the roof and at least some "seepage," that is surface water which, having no natural drain, accumulated on the flat, level surface of the lot south of the house and "seeped" into the ground. An open concrete conduit or drain had been constructed across the parking to, sloping slightly toward and stopping at, the west edge of the sidewalk. This concrete drain, variously referred to in the evidence as a "drain," "a gutter," and "a trough," was so constructed as, and apparently for that purpose, to connect with the open end or mouth of the line of tiling, at the point where it emptied onto the parking near the bottom of the terrace, and receive and carry the water flowing out of and from the tiling across the parking to the west edge of the sidewalk; it then flowed across the sidewalk and was apparently intended to eventually find its way to the street gutter east of the sidewalk. The slope of the parking and the sidewalk is to the east toward the street, "but the grass plot" east of the sidewalk, between the sidewalk and the street, is a "trifle higher" than the sidewalk, "an inch and a half or two inches on south to the corner." With this situation it is apparent that water from the Platner property flowing through the line of tiling into the concrete "drain" or "trough" would be carried to and emptied upon the sidewalk and then flow east upon and across the sidewalk, but upon encountering the slightly higher grass plot along the east side of the sidewalk would in some measure be deflected and flow toward the south along the east side of the sidewalk. The concrete drain or trough across the parking was not constructed by the owner of the adjoining property or at his direction. Presumably it was constructed by the city, though that does not definitely appear, however it is not important here since the evidence shows that the situation described, the line of tiling, the concrete drain across the parking carrying the water coming through and from the tiling to, and discharging it upon, the sidewalk, had existed for some nine or ten years. The accident occurred between 10 and 10:30 o'clock the night of February 4, 1930. In the early part of January an unusually heavy snow fell in Kansas City, approximately 22 inches, followed by snow fall at intervals during the month of January until January 21. There was no precipitation, either snow or rain, from January 21 to January 31, inclusive. There was no snow or rain on February 1 or February 2; on February 3 there was .07 of an inch of rain, but no rain or snow on February 4. There was, however, throughout this entire time short periods, almost daily, of slight thawing followed by freezing temperatures and conditions. On February 1 there was an average of snow on the ground of 3.5 inches; on the 2d about 2 inches; and on the 3d about 1.5 inches. Plaintiff and her husband and family resided at 4638 Virginia about three blocks from the 4430 Paseo property. The evening of February 4, plaintiff had visited at the home of friends at 4108 Paseo. She was returning to her home between 10 and 10:30 o'clock that night, walking south, alone, along the sidewalk on the west side of Paseo. She says that she did not encounter any ice or snow upon the sidewalk until she came to the ice which caused her to fall; that the sidewalk north of that point was "clear" and free of both snow and ice; that "when I came in contact with this ice my feet slipped and I fell"; that the ice which caused her to slip and fall was "4 feet wide north and south" and spread out on the sidewalk "close to the drain"; that she noticed the drain (the concrete drain through the parking above described) and that there was ice in it; and that there was snow on the terrace, the parking west of the sidewalk, and the ground east of the sidewalk, but no snow on the sidewalk. About the time she fell, a man and woman, whose identity was never ascertained, walking north on the sidewalk, came to her assistance. The man carried plaintiff to the Sarazin home, the bungalow numbered 4432 Paseo, mentioned supra, being the first house on that side of the street south of the point where she fell. Telephone messages brought her husband and a doctor in very short time to the Sarazin home. Plaintiff was taken to a hospital and later the same night to her home. Thereafter about...