Drake v. Kansas City

• Decision Date: 11 October 1905
• Citation: Drake v. Kansas City, 190 Mo. 370, 88 S.W. 689 (Mo. 1905)
• Parties: DRAKE v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

88 S.W. 689

190 Mo. 370

DRAKE v. KANSAS CITY, Appellant

Supreme Court of Missouri, First Division

October 11, 1905

Appeal from Carroll Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

L. A Laughlin and R. J. Ingraham for appellant.

(1) The court erred in refusing to sustain the demurrer to the evidence at the close of plaintiff's case. Carvin v St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Matthews v. New York, 78 A.D. 422; Hanscom v Boston, 141 Mass. 242; Rushton v. Allegheny, 192 Pa. 574; Cooper v. Milwaukee, 97 Wis. 458. (2) The court erred in modifying and giving defendant's instruction 5. (3) The court erred in modifying and giving defendant's instruction 8. Christian v. Ins. Co., 143 Mo. 460; Bank v. Armstrong, 62 Mo. 59; Mason v. Railroad, 75 Mo.App. 1; Chitty v. Railroad, 148 Mo. 64. (4) The verdict of the jury was the result of passion and prejudice. Spohn v. Railroad, 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 120; Whitsett v. Ransom, 79 Mo. 258.

Frank P. Walsh, Virgil Conkling and E. R. Morrison for respondent.

(1) By the exercise of reasonable care the appellant could have known of the defects complained of in time to have remedied the same prior to the injury complained of. Barr v. Kansas City, 121 Mo. 22; McGaffigan v. Boston, 149 Mass. 289; Benjamin v. Railroad, 133 Mo. 289; Buckley v. Kansas City, 156 Mo. 16, 75 Mo.App. 188; Joliet v. Walker, 7 Ill.App. 271; Tiedeman on Mun. Corp., sec. 350A; City of La Salle v. Porterfield, 138 Ill. 119; Norton v. St. Louis, 97 Mo. 541; Jones, Neg. of Mun. Cor., secs. 94, 95; City of Atchison v. Jansen, 21 Kan. 575; Roe v. Kansas City, 100 Mo. 190; Vanderslice v. Philadelphia, 103 Pa. 107; Jegglin v. Roeder, 79 Mo.App. 435; Hembling v. Grand Rapids, 99 Mich. 294; Kuntsch v. New Haven, 83 Mo.App. 180; Snyder v. City of Albion, 113 Mich. 275. (2) The city had ample time and opportunity to have discovered the defective condition of the sidewalk at this point. Maus v. Springfield, 101 Mo. 617; Young v. Webb City, 150 Mo. 340; McKissick v. St. Louis, 154 Mo. 588; Reedy v. Brewing Assn., 161 Mo. 541; Carrington v. St. Louis, 89 Mo. 208; Beauvais v. St. Louis, 169 Mo. 505; Barr v. Kansas City, 105 Mo. 550; Post v. Boston, 141 Mass. 189; Milledge v. Kansas City, 100 Mo.App. 490; 2 Shearman & Redfield on Negligence, sec. 369; Sweeney v. City of Butte, 15 Mont. 274; Chapman v. City of Macon, 55 Ga. 566; Smith v. Leavenworth, 15 Kan. 81. (3) The coal hole and cover form a part of the sidewalk and the city is charged with notice if they are defective in construction. Barr v. Kansas City, 105 Mo. 557; Brake v. Kansas City, 100 Mo.App. 614; Swenson v. City of Lexington, 69 Mo. 167; Wendall v. Mayor, etc., of Troy, 39 Barb. 337; Weber v. City of Creston, 75 Iowa 16. (4) Appellant's instruction 5 was properly modified by the trial court. Buckley v. Kansas City, 95 Mo.App. 201; Squires v. Chillicothe, 89 Mo. 232; Mitchell v. City of Plattsburg, 33 Mo.App. 560. (5) The trial court did not err in modifying appellant's eighth instruction.

OPINION

MARSHALL, J.

This is an action for $ 25,000 damages for personal injuries received by the plaintiff on the 24th of May, 1900, in consequence of stepping into a coal hole in the sidewalk on the south side of Thirteenth street, between Tracy and Forrest Avenues, in Kansas City, and in front of house No. 1211 East Thirteenth street. There was a verdict and judgment for the plaintiff for $ 15,000, and after proper steps the defendant appealed.

THE ISSUES.

The petition alleges that Thirteenth street is a public highway of the defendant city and that at the time of the accident the sidewalk, as maintained by the defendant, was in an unsafe and dangerous condition, in this, "that a certain coal hole therein, being a circular aperture from one to two feet in diameter, was improperly, unskillfully and negligently constructed, maintained, suffered and permitted to be and remain in the sidewalk; that the cover of said coal hole was too light for the purposes for which it was used; that the rim around the under side of said cover was too shallow and not of sufficient depth for the purpose for which it was used; that the said rim was too small in diameter, causing the said cover to be in a loose condition when put in its place; that a certain iron frame upon which said cover rested was at or near the level of the balance of the sidewalk, so that when the covering was placed in position, said iron cover protruded above and over the balance of the sidewalk; so that said cover and frame were defective, unsafe, dangerous and insecure and said cover did not sit firmly over said hole, and was thus liable to turn and become displaced by persons stepping upon or against the same, thus opening said hole, and entrapping and affording an unsafe and insecure footing to persons passing over the same;" that the defendant knew, or by the exercise of ordinary care could have known, of the unsafe, dangerous and defective condition of the sidewalk, which condition existed for a length of time reasonably sufficient for the defendant to have ascertained and corrected the same; that while plaintiff was walking upon said sidewalk and exercising ordinary care, and was ignorant of the defective and unsafe condition thereof, he stepped on the cover of said coal hole, which, in consequence of the defects stated, turned in said frame and plaintiff's leg dropped into said hole, and plaintiff fell violently upon the edge of said cover and upon the sides of said coal hole, and was injured in a manner, and to a permanent extent, which, it is only necessary to say, was of the most painful and serious character that could be inflicted upon a man.

The answer admits the character of the defendant city, denies every other allegation of the petition, and pleads contributory negligence of the plaintiff. The case was taken on change of venue from Kansas City to Carroll county, Missouri.

The case made is this:

It was admitted that the place where the coal hole was located was in a sidewalk of a public street of the defendant city. The coal hole apparatus was produced in court and by stipulation of counsel it was admitted to be in the same condition that it was in at the time of the injury except that the rim had been surrounded by cement by the defendant. The plaintiff was a man fifty-five years of age at the time of the accident and was engaged in the advertising business, earning from twelve to fifteen hundred dollars a year. He lived at 1306 Michigan avenue, which was east of the place of the accident. On the day of the accident, at about 9:15 o'clock A. M., he was proceeding west on Thirteenth street on his way down town to his business, and while so doing he fell into the coal hole and received the injuries complained of.

The plaintiff says that the coal hole was in the middle of the stone sidewalk, and that the top thereof was lying flat, and that he stepped upon it and that it gave way or slipped, so that his foot went into the coal hole and he fell astride of the cover. He says he saw the coal hole before he stepped on it, and that the cover was lying perfectly flat in its place.

Mrs. Max Cohn, whose testimony was taken by the defendant, but read by the plaintiff, testified that she boarded at 1215 East Thirteenth street, the house next door to the premises in front of which the coal hole in question was located; that she occupied the third-story front room, and was sitting at the front window, and first saw the plaintiff standing in front of her boarding house, and the next she saw he was in the coal hole; that Thirteenth street, at that point, is thickly built up; that she had seen the cover over the coal hole slightly raised before the day of the accident, and sometimes it was not in its regular position.

Luther B. Keebaugh, a witness whose deposition was taken by the defendant but read by the plaintiff, testified that he lived at 1215 East Thirteenth street, that he passed the coal hole six or eight times a day for several years before the accident and had frequently seen the cover of the coal hole out of place, with some obstruction placed over the top of the coal hole; that he had often heard the cover over the coal hole rattle when persons stepped onto it; that the cover over the coal hole stood a little above the level of the walk; that that portion of the city was thickly built up and the street was a much-traveled street.

Albert Stedman, a witness for the plaintiff, testified that he was hauling brick for the building of some flats on the other side of the street; that just before the accident he noticed that the cover to the coal hole was a little off of the hole and one side tipped down about an inch and a quarter or two inches; that it was in such condition about five minutes before the accident; that he did not see the accident but saw the plaintiff in the coal hole immediately after he had fallen into it, and assisted him to get out of it; that the cover of the coal hole tipped towards the west and did not rest on the rim of the coal hole.

J. O Hogg, a witness for the plaintiff, testified that he was an architect and had experience in providing for coal holes and covers thereon; that he examined the coal hole in question after the accident; that there is an iron frame about a quarter of an inch thick that is put in a coal hole cut into the stone sidewalk; that the cover was between fifteen and sixteen inches in diameter and was about nine-sixteenths of an inch thick; that there was a rim below the underpart of the cover; that the same extended about one-fourth of an inch above the sidewalk, that the cover did not fit tight in the frame; that the rim was too shallow, so that the cover projected above the...