Eisele v. Kansas City

• Decision Date: 30 January 1922
• Docket Number: No. 14076.,14076.
• Citation: 237 S.W. 873
• Parties: EISELE v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

237 S.W. 873

EISELE v. KANSAS CITY et al.

No. 14076.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Rehearing Denied February 20, 1922.

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

"Not to be officially published."

Action by Andrew M. Eisele against Kansas City and others. From judgment for defendants, plaintiff appeals. Affirmed.

Geo. B. Strother and T. J. Madden, both of Kansas City, for appellant.

E. M. Harber and Ilus M. Lee, both of Kansas City, for respondents.

ARNOLD, J.

This is a suit in damages for personal injuries. The injury occurred before daylight on the morning of January 19, 1917, at a point about 100 feet east of Park avenue, on the north side of Forty-Fifth street, in front of residence numbered 2304 in Kansas City, Mo. A verdict was returned for defendants, and plaintiff appeals.

The testimony shows that Park avenue runs north and south, and is intersected at right angles by Forty-Fifth street. Both of said streets were paved, and sidewalks and curbing were in. Forty-Fifth street, from Park avenue east, has a steep ascending grade and a terrace 8 to 10 feet high on the north side thereof. Plaintiff's residence, numbered 4441 Park avenue, faces west, and is 50 feet more or less, north of Forty-Fifth street. Two cottages, numbered 2304 and 2306 East Forty-Fifth street, had been built on the north side of Forty-Fifth street, east of Park avenue, by a Mr. Chinn. At the time of the injury complained of these cottages had been completed, excepting the sewer connection, and were unoccupied. Walks and steps had been built leading down the said terrace to the sidewalk. The land from plaintiff's home south to Forty-Fifth street, and from cottage No. 2304 west to Park avenue, was vacant.

On November 27, 1916, an ordinance was passed by the city council of Kansas City permitting Mr. Chinn to construct a private sewer to connect with his said houses, and accordingly, on January 15, 1917, a permit was issued to defendant Arnoldia, under the name of Benton Plumbing Company, authorizing him to construct the sewer pursuant to the ordinance. Said sewer was begun by opening the pavement in the middle of Park avenue, where a connection was to be made with the main sewer, and then digging a ditch about 135 feet east on a line running inside the sidewalk on the north side of Forty-Fifth street. This ditch was 3 or 4 feet in depth, and about 18 inches wide, the dirt therefrom being thrown out upon the side walk, completely covering and obstructing the same excepting a small space immediately in front of the steps loading down the terrace from cottage No. 2304, at which point the ditch was tunneled under the steps and the dirt from said tunnel thrown to each side of the space in front of the steps. At the time of the alleged injury this ditch extended east of said steps a distance of 12 to 20 feet.

The testimony for defendants tends to show that a red light and barricade had been placed at the east end of the ditch, that there was a light at the west end in Park avenue, and that there was neither light nor barricade near the steps at the point where plaintiff is alleged to have been injured.

At about 5 o'clock in the morning of January 19, 1917, plaintiff left his home while it was yet quite dark to go to his work, intending to board a Prospect avenue car, which would be east of the place of injury. He left his back porch and went by way of a private walk on the west side of cottage No. 2304, and down the steps thereof to Forty-Fifth street. Plaintiff testified that on reaching the sidewalk he turned to go east, when he was tripped by the pile of earth, as above described, and was thrown into the ditch immediately each of the steps thereby breaking his leg and causing other injuries of which he complains.

Plaintiff's theory is that the injury occurred upon a public sidewalk upon which he had a right to enter at any point, either from the street or from private property, and that it was the duty of defendant to guard or so to light the place at all points of danger as to warn the public thereof. His evidence tends to show that there was no light at the east end of the ditch of any kind, while defendant's evidence is that a light had been placed there at 4:30 o'clock in the afternoon of the previous day, and was still burning the following morning.

There is no contention on the part of defendant that plaintiff was not injured as alleged in the petition. The negligence charged in the amended petition is bottomed upon the acts of defendants in carelessly digging or excavating the said ditch or trench, permitting dirt to be thrown upon and strewn along and over the said sidewalk in large quantities, and to remain there a long time; that they permitted the same to be used and unprotected without any warning barrier in front of the entrance to the said property, and the steps thereof leading into the street; and that the defendants "knew of the presence of said dirt on said sidewalk, and of the opening or ditch in said street north of said sidewalk, and in front of the property aforesaid, or could have known of said condition by the exercise of due care."

The answer of defendant city was, first, a general denial, and, second, a plea of contributory negligence, in that "plaintiff negligently failed to use plaintiff's eyes and senses in selecting the course which plaintiff was pursuing, and negligently failed to use plaintiff's eyes and senses in the use of such course."

The answer of defendant Arnoldia was a general denial, and plaintiff's reply was a general denial. The cause was tried to a jury, resulting, as stated above, in a verdict for defendants.

It is well settled in this state that, while a traveler on a public street may presume that the way is clear, and not in a dangerous condition, yet if he knows that the sidewalk or street upon which he is passing is torn up, or in any way obstructed by public work being done therein, he cannot go forward relying upon the presumption that the way is clear, but must exercise his faculties to see and discover any dangers that he may encounter from such obstructing work, and, if he fails so to do, and is injured thereby, his own contributory negligence will be a bar to his recovery, although the public authorities, or the contractor doing the work also may have been guilty of negligence. This principle is upheld in Waldmann v. Skrainka Const. Co. (Mo. Sup.) 233 S. W. 242; Welch v. McGowan, 262 Mo. 709, 172 S. W. 18; Wheat v. City of St. Louis, 179 Mo. 572, 78 S. W. 790, 64 L. R. A. 292; Ryan v. Kansas City, 232 Mo. 471, 134 S. W. 566, 985; Craine v. Met. St. Ry. Co., 246 Mo. 393, 152 S. W. 24; Woodson v. Ry. Co., 224 Mo. 685, 123 S. W. 820, 30 L. R. A. (N. S.) 931, 20 Ann. Cas. 1039.; Kaiser v. St. Louis, 185 Mo. 366, 84 S. W. 19; Brady v. St. Joseph, 167 Mo. App. 425, 151 S. W. 234; Cohn v. Kansas City, 108 Mo. 387, 18 S. W. 973.

In Wheat v. St. Louis, supra, 179 Mo. loc. cit. 582, 78 S. W. 792, 64 L. R. A. 292, the court held:

"While the city owes the citizen the duty to keep the highways reasonably safe for persons to pass over, the citizen owes the city the duty to use his God-given senses, and not to run into obstructions that he is familiar...