Edmonston v. Kansas City, Mo.

• Decision Date: 19 February 1940
• Docket Number: No. 19534.,19534.
• Parties: EDMONSTON v. KANSAS CITY, MO.
• Court: Missouri Court of Appeals

139 S.W.2d 1073

EDMONSTON v. KANSAS CITY, MO.

No. 19534.

Kansas City Court of Appeals. Missouri.

February 19, 1940.

Rehearing Denied April 29, 1940.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by S. E. Edmonston against Kansas City, Mo., to recover damages for personal injuries allegedly received when plaintiff stepped into a partially uncovered manhole over a sewer line. Judgment for plaintiff, and defendant appeals.

Reversed and cause remanded.

Sam C. Blair, City Counselor, of Jefferson City, and John J. Cosgrove and John J. Manning, Jr., Asst. City Counselors, both of Kansas City, for appellant.

Wendell W. McCanles, of Los Angeles Cal., for respondent.

KEMP, Judge.

This is a suit to recover damages for personal injuries alleged to have been received as a result of plaintiff stepping into a partially uncovered manhole over a sewer line.

There have been two trials of this case, the first trial resulting in a verdict and judgment in favor of plaintiff for $1,200. Upon appeal to this court, the judgment was reversed and the cause remanded. Edmonston v. Kansas City, 227 Mo.App. 817, 57 S.W.2d 690. Upon a second trial, there was a verdict for plaintiff for $8,000, which was reduced by remittitur to $5,000. From a judgment in favor of plaintiff for $5,000, defendant has duly prosecuted this appeal, and this case is thus before us for a second time.

Twenty-second Street, in Kansas City, Missouri, is an east-west street, and extends west a short distance from Holmes Street, a north-south street, to a narrow street known as McCoy Avenue, which runs north and south, and at this point, Twenty-second Street, at the time of plaintiff's injury, came to a dead end. It has since been extended west to Gillham Road. From McCoy Avenue on west to Gillham Road (a north-south thoroughfare), there is an expanse of park property owned by the defendant city. The Journal Post Building is situated a fraction of a block on west of Gillham Road and slightly to the south of Twenty-second Street, if same were extended on west beyond McCoy Avenue.

There was testimony by witnesses other than plaintiff that about five and one-half years prior to plaintiff's injury, a sidewalk had been constructed of gravel and cinders and asphalt, extending from McCoy Avenue to Gillham Road, in approximately the center of or alongside of Twenty-second Street had said Twenty-second Street been extended across said park property. The testimony of these witnesses was to the effect that this sidewalk was a good, smooth walk, 6 or 7 feet in width. There was evidence to the effect that some two and one-half years prior to the first trial of this case, and a short time prior to the time of plaintiff's injury, construction of a hospital was commenced at a site just west of McCoy Avenue and north of Twenty-second Street as extended, and that trucks carrying material for that construction work had been driven across this sidewalk, breaking it up in places and making it rough and uneven. After the sidewalk was broken up, the city put up no barricades nor did it take any other measures to withdraw it from use by the public.

Plaintiff testified that on January 10, 1929, he was on his way to work at the Journal Post Building, where he was employed as night janitor. At about 7:30 P. M., he alighted from a street car at the intersection of Twenty-second and Holmes Streets, and walked west along the sidewalk to McCoy Avenue. He had never crossed the park property before. There was snow on the ground and when plaintiff had gotten across McCoy Avenue, he saw a path or walk of cinders and gravel, which he described as a path about 3 or 4 feet wide, extending west across the park property. When he reached a point which he estimated to be about 150 feet east of Gillham Road he stepped into a partially uncovered manhole over a sewer line and was thereby injured. He testified that at the time he stepped into the manhole he was walking on said cinder and gravel path or walk—that the manhole, which was about 30 to 36 inches "across", "was right on the path". From the testimony of other witnesses testifying on behalf of plaintiff, it does not appear that the sidewalk came any nearer the manhole than 4 or 5 feet. Plaintiff described the partial covering on the manhole as rock or concrete about 4 inches thick, in the shape of a half circle, with about a third of the corner broken off.

The petition alleges that the defendant city maintained a large rock about 4 feet in circumference as a covering for said manhole, and that for a period of more than thirty days prior to the plaintiff's injury a fourth segment of said rock was broken off, leaving an open space at the top of said hole between 18 inches and 2 feet, and that said uncovered portion of said manhole was dangerous to pedestrians using said street and thoroughfare (gravel and cinder path and walk), and wherein pedestrians were likely to step into said uncovered portion of said sewer hole and to injure themselves, all of which the defendant knew or, by the exercise of reasonable care, should have known, in time thereafter to have repaired same. Defendant is charged with negligence "in allowing and permitting said sewer hole, described aforesaid, to be uncovered as aforesaid, (and not maintaining said gravel and cinder walk in a reasonably safe condition for public travel)." (Words in parenthesis indicate amendment by interlineation.)

At the first trial of this case, the plaintiff referred to the course that he took across the park as following a path through the snow. "Well, people through the daytime had made a path there and you could see the path all right. It looked like a path and I was following it. I walked in it." At another point he stated, "There was a path there, kind of a ridge throwed up, like it is through water, on a dam. I walked along that ridge. * * *" At no place in his testimony at the first trial does he say that he was walking on a sidewalk of any kind. Nor did he at any place in his prior testimony refer to a cinder and gravel walk or path. Plaintiff was asked by a juror: "Is the hole where the sidewalk should be, or in the street? A. It is right where the sidewalk would be if there was any sidewalk there. There isn't any sidewalk there. There never has been. There isn't any sidewalk on that hillside that I know of." Referring to the ridge on which he stated he was walking:

"Q. Did that ridge extend east and west all along where you were walking? A. Yes, clear out there. It come kind of angled down from the south, southwest maybe a little."

This is only a portion of the testimony at the first trial from which this court, on the first appeal, found that the plaintiff was not walking upon the sidewalk described by other witnesses who testified at that trial as running along Twenty-second Street, as extended, but was walking upon one of a number of paths made by pedestrians on account of their having to detour because of the broken and cut-up condition of the sidewalk.

Defendant contends that its demurrer to the evidence should have been sustained, first, because there was no evidence that there was an open sewer hole in the sidewalk extending from McCoy Avenue to Gillham Road, citing as authority therefor our holding in Edmonston v. Kansas City, supra.

Disregarding plaintiff's conflicting testimony at the first trial, defendant's first contention cannot be sustained. Plaintiff testified at the second trial to the effect that he was walking on the cinder and gravel walk or path at the time he fell into the sewer hole. Giving full effect to this testimony, the only possible conclusion therefrom is that the uncovered sewer hole over which the walk extended constituted a defect in the sidewalk. There was evidence that this defect had existed for sufficient time prior to the accident to have charged defendant with knowledge thereof, after which the defendant failed either to repair it or put up barricades or otherwise to withdraw it from public use. It is true that the testimony of other witnesses testifying on behalf of plaintiff was to the effect that said sewer hole was 4 or 5 feet to the south of the south edge of the walk, but this does not destroy plaintiff's own testimony to the effect that the hole was in the walk. In Steele v. Kansas City Southern Railway Co., 265 Mo. 97, loc. cit. 118, 175 S.W. 177, loc. cit. 182, it is said: "We need not reiterate that, as to a mere witness, no state of facts could ordinarily arise upon any matter of contradictory evidence that would oust the triers of fact of their privilege in a lawsuit of resolving the truth of such contradiction."

Defendant's second ground is that this court, upon the first appeal of this case, held that plaintiff failed to sustain the theory that he fell in a sewer hole over which the sidewalk extended, and suggested another theory on which he might be entitled to recover, which the plaintiff has ignored, and again cites our opinion in the first appeal. What was held in our opinion upon the first appeal was based upon plaintiff's testimony at the first trial, from which it appeared that because of the condition of the sidewalk plaintiff was compelled to detour on one of several paths made by pedestrians because of the defective condition of the sidewalk. We there found [227 Mo.App. 817, 57 S.W.2d 691]: "There was no evidence that the city directly or constructively recognized any of these paths as public walks or in any other manner." We then said: "We think the true liability of the city is based upon its failure to maintain the sidewalk in a reasonably safe condition so that it could be used by pedestrians. Undoubtedly it was this negligence that constituted the proximate cause of plaintiff's injury, for it was the defective condition of the sidewalk that forced him, in common with others, to use a byway, resulting in his injury."

But this holding upon the first appeal is not the law of the...