Fox v. City of Joplin

• Decision Date: 06 July 1927
• Docket Number: No. 4292.,4292.
• Citation: 297 S.W. 449
• Parties: FOX v. CITY OF JOPLIN
• Court: Missouri Court of Appeals

297 S.W. 449

FOX v. CITY OF JOPLIN

No. 4292.

Spring field Court of Appeals Missouri.

July 6, 1927.

Rehering Denied August 16, 1927.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by R. K. Fox against the City of Joplin and another. Judgment for defendants, and plaintiff appeals. Affirmed.

George V. Farris and Roy Coyne, both of Joplin, for appellant.

R. A. Pearson, of Joplin, for respondent City of Joplin.

E. T. Miller, of St. Louis, and Mann & Mann, of Springfield, for respondent St. Louis-San Francisco Ry. Co.

BRADLEY, J.

Plaintiff filed his petition against defendants seeking damages for personal injury. Defendants filed separate demurrers, each alleging that the petition did not state facts sufficient to constitute a cause of action. The demurrers were sustained, and, plaintiff refusing to plead further, the petition was dismissed, and plaintiff appealed.

The petition, caption omitted, is as follows:

"Comes now the plaintiff, and by leave of court first had and obtained files this his amended petition, and for cause of action states that at all times herein mentioned the city of Joplin was a municipal corporation, organized as a city of the second class under the laws of the state of Missouri, and that the defendant St. Louis-San Francisco Railway Company was a corporation, organized under the laws of the state of Missouri, and having its depot and railroad lines in Joplin, Jasper county, Mo.

"Plaintiff' further states that Kentucky avenue in said city of Joplin was a main traveled street running north and south and intersecting Sixth street, a street running east and west in said city, and continuing south of Sixth street down to the north side of the right of way of the defendant St. Louis-San Francisco Railway Company, and continuing in a southerly direction from the south side of the right of way of the St. Louis-San Francisco Railway Company, and on which right of way the defendant railway company had laid several railroad tracks.

"Plaintiff further states that the city of Joplin had caused to be constructed on both sides of Kentucky avenue cement sidewalks for the use of pedestrians; that said concrete sidewalk ran along the west side of Kentucky avenue in a north and south direction, terminating at a point south of Sixth street in said city of Joplin, at the right of way of defendant St. Louis-San Francisco Railway Company.

"Plaintiff states that running parallel to Sixth street and about 50 or 60 feet south of said street was a water course or branch; that the defendant St. Louis-San Francisco Railway Company had built a perpendicular wall at the north edge of said branch some two blocks long; that said perpendicular wall was about 12 feet high, and on the top of said wall and level with the sidewalk portion of Kentucky avenue and the west side thereof said defendant St. Louis-San Francisco Railway Company had laid a railroad track or switch.

"Plaintiff further states that said perpendicular wall had been constructed and maintained by the St. Louis-San Francisco Railway for a long period of time and was maintained in such close proximity to the sidewalk portion of Kentucky avenue that the same was unsafe and dangerous for persons lawfully using said side-walk in that persons so lawfully using said sidewalk on the west side of Kentucky avenue, on reaching the end of said sidewalk, would be liable to be precipitated into said water course or branch and thereby suffer injury.

"Plaintiff states that it was the duty of defendants, and each of them, to use ordinary care to keep the place where Kentucky avenue as aforesaid, and especially the west sidewalk portion thereof where the same comes up to the right of way of defendant St. Louis-San Francisco Railway Company, in a reasonably safe condition for persons traveling thereon, and to maintain lights at said intersection, and to place a guard or railing at the end of said sidewalk portion of said west side of Kentucky avenue where the same comes up to said right of way, in order that persons lawfully traveling on said sidewalk might not walk off said high wall, so erected by said St. Louis-San Francisco Railway Company, and thereby fall into said branch.

"But, plaintiff states that the defendants, neglecting their duty in this behalf, did on the 10th day of February, 1926, and for a long time prior thereto negligently and carelessly fail to place any guard or barrier at the end of the sidewalk portion of the west side of Kentucky avenue where the same approaches the said railroad right of way, and did negligently and carelessly fail to warn plaintiff of the unsafe and dangerous condition of said sidewalk; so that on the said 10th day of February, 1926, at about the hour of 8:30 p. m. of said date, plaintiff being a stranger in the city of Joplin and unfamiliar with the city and the unsafe condition of said sidewalk, as aforesaid, and of the unsafe and dangerous condition maintained by defendant railroad company in such close proximity to said sidewalk, as aforesaid, and while lawfully walking south on the west side of Kentucky avenue on the sidewalk portion of the same and on reaching the end of the said sidewalk was by reason of the negligence and carelessness of the defendants, as aforesaid, caused to walk off said high wall or embankment and fall into the ditch or branch, a distance of about 12 feet."

After the allegations as above set out, the petition describes the injuries received and alleges that said injuries were caused directly by the carelessness and negligence of the defendants as alleged and without fault on the part of plaintiff.

Condensed, the petition states that Kentucky avenue is a main traveled street running north and south and intersects Sixth street, which runs east and west; (2) that after intersecting Sixth street Kentucky avenue continues south down to the north line of the right of way; (3) that on reaching the north line of the right of way, Kentucky avenue terminates, but commences again at the south line of the right of way and continues south; (4) that on the...