Francis v. City of West Plains

• Decision Date: 06 December 1919
• Docket Number: No. 2561.,2561.
• Citation: 203 Mo. App. 249,216 S.W. 808
• Parties: FRANCIS v. CITY OF WEST PLAINS.
• Court: Missouri Court of Appeals

216 S.W. 808

203 Mo. App. 249

FRANCIS v. CITY OF WEST PLAINS.

No. 2561.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Action by F. M. Francis against the City of West Plains. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

O. L. Haydon, of West Plains, for appellant.

J. L. Van Wormer and Will H. D. Green, both of West Plains, for respondent.

FARRINGTON, J.

The appellant is a city of the third class, and appeals from a judgment against it rendered for plaintiff after a trial to a jury based upon a petition alleging negligence on the part of the city in keeping a certain portion of its sidewalks and streets in an unsafe condition, on account of which the plaintiff fell and was injured, severely spraining one of his ankles.

Appellant raises numerous assignments of error, and in its brief charges: "First, that a demurrer to the evidence should have been sustained; and, second, that certain instructions which were given on behalf of respondent contained reversible error, which instructions will be hereafter particularly noticed.

The appellant has failed to convince us that this case should have been withdrawn from the jury at the close of all the testimony, as we are of the opinion that the evidence which we will now relate makes out a case of negligence on the part of the city in failing to use reasonable care to keep its streets and sidewalks in a reasonably safe condition, and fails to show, as a matter of law, that the plaintiff was guilty of contributory negligence, such as to bar a recovery.

The facts are: The plaintiff, a man about 60 years of age, was a paper hanger by trade and lived in the southeast portion of the city of West Plains. He had purchased a store some few days prior to the night of his injury. On the night he was injured, about 10 o'clock, in company with his son, he started from his store to his home. The night was dark, and the street lights, owing to some trouble from a storm, were not lighted. He walked until he reached Grace street, a street running east and west, and proceeded down the south sidewalk of that street until he came to Locust street, a street intersecting Grace street and running north and south. Plaintiff lived about two blocks south on the east side of Locust street, about two blocks from the intersection. The evidence shows that at the intersection of Grace and Locust streets there is a cement culvert forming a part of the walkway, across the intersecting streets; that along the east side of Locust street, extending back for some distance, is a ditch or waterway, and to bridge over this waterway at the street intersection a cement walkway was bridged across this ditch, which at this point was from 2% to 3 feet deep, and from 4 to 6 feet wide, there being no guards or siderails to prevent one from stepping off the walk into this ditch. This walk had remained in this condition some four or five years. Prior to its construction there was a wooden bridge over this ditch at the same place, which bridge had railings.

There can be no question that the city in constructing this sidewalk, something like four feet wide, left the south side of the walk where it crosses the ditch unprotected, and that immediately south of the edge of the walk constructed was a ditch of the width and depth before described. The plaintiff and his son both knew of this condition, as they passed there every day going from home to town and back. The street lights were not on, and they both testified that in order to avoid the chance of falling into this ditch, in crossing the sidewalk over it, they concluded that it would be best to not go entirely across Locust street and then turn south on the regular sidewalk, for to go there would require that they pass over this unprotected part of the walk, but thought it would be best and safer for them to turn south down the middle of Locust street when they had proceeded east on Grace street to the center of Locust street. They both say that they thought they had reached the center of Locust street, and the plaintiff turned to go south, thinking that he was in the middle of Locust street, when in fact he had gone too far east and was right on the part of the sidewalk that was over this unprotected ditch. When he stepped off to the south, he fell into this ditch and was injured. Their testimony is to the effect that it was so dark they could not discern exactly where they were, but were doing all they could to take the center of Locust street and proceed along it south to their home. It was also shown in evidence that the other streets leading from the store to the home were equally as dangerous and hazardous as the course which they undertook to go.

This is not a case where it is admitted that the plaintiff knew of a defective condition and thoughtlessly and carelessly forgot it and walked into it, but, on the other hand, is one where the dangerous place was known to the plaintiff, and he was trying in the dark to avoid it. Neither does the evidence disclose such a condition as to make it so patently dangerous that no ordinarily prudent person would have attempted to go that way. A person has a right to use a sidewalk which he knows is dangerous, if he in such knowledge uses it with care to himself. It is not contributory negligence, as a matter of law, unless the defect is so glaringly dangerous that no prudent person would attempt to pass over it. Loftis v. Kansas City, 156 Mo. App. 683, 137 S. W. 993; Graney v. City of St. Louis, 141 Mo. 150, 42 S. W. 941.

We cannot hold that his action as disclosed in this record could be, as a matter of law, declared contributory negligence, and we are clearly of, the opinion that the condition described by plaintiff's witnesses made it a case for a jury to pass on the defendant's acts concerning its duty to the plaintiff and the public as to this sidewalk. Gallagher v. City of Tipton, 152 Mo. App. 412, 133 S. W. 135; Kuntsch v. New Haven, 83 Mo. App. 174; Walker v. City of Kansas, 99 Mo. 647, 12 S. W. 894; Gibbs V. City of Monett, 163 Mo. App. 105, 145 S. W. 841. We therefore overrule the appellant's contention in this regard...