Gallagher v. City of Tipton

• Decision Date: 16 November 1908
• Parties: GALLAGHER v. CITY OF TIPTON.
• Court: Missouri Court of Appeals

113 S.W. 674

133 Mo. App. 557

GALLAGHER v. CITY OF TIPTON.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. MUNICIPAL CORPORATIONS (§ 767)— STREETS—DRAINS—MUNICIPAL POWER.

Municipalities can maintain their streets with the center elevated and gutters or drains on the sides to carry away surface water.

2. MUNICIPAL CORPORATIONS (§ 764)—CROSSWALKS—MUNICIPAL DUTY.

A municipality must keep cross-walks, where they pass over gutters, in reasonably safe condition in the light of the plan adopted.

3. MUNICIPAL CORPORATIONS (§ 768)—TORTS — GOVERNMENTAL OR CORPORATE ACTS STREET IMPROVEMENTS—CROSS-WALKS.

While a city may adopt a plan of street crossings, including a way over the gutter, without being liable for injury from a danger inherent in the plan adopted, it will be liable for negligent construction or maintenance under the plan.

4. MUNICIPAL CORPORATIONS (§ 821)—INJURY ON CROSS-WALK—NEGLIGENCE—JURY QUESTION.

Whether a city was negligent respecting a cross-walk over a gutter held a jury question in

an action for injury to a pedestrian who stepped off it at night.

5. MUNICIPAL CORPORATIONS (§ 822)—INJURY ON CROSS-WALK—INSTRUCTIONS.

It was improper to authorize recovery by one suing a city for injury caused by stepping off a cross-walk into the gutter at night, if a guard on the walk was necessary, and if plaintiff exercised ordinary care, where there was evidence tending to show that plaintiff got into the gutter in a way which a railing would not have prevented.

6. MUNICIPAL CORPORATIONS (§ 821) — INJURY ON CROSS-WALK—CONTRIBUTORY NEGLIGENCE—JURY QUESTION.

Whether a pedestrian, injured by stepping off a cross-walk into a gutter at night, was guilty of contributory negligence, held under the evidence a jury question.

7. NEGLIGENCE (§ 3)—RELATIVE TERM.

"Negligence" is a relative term, and what would be negligence in one situation might not be in another.

8. EVIDENCE (§ 472)—OPINIONS—IMPROPER SUBJECTS—NECESSITY FOR STREET DRAINS.

In an action for injury to a pedestrian, who stepped into a street drain from a cross-walk, it was improper to allow testimony whether it was necessary to have or permit the drain; that being for the jury under all the evidence.

Appeal from Circuit Court, Moniteau County; W. H. Martin, Judge.

Action by Thyrza Gallagher against the City of Tipton. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. M. Embry, W. F. Quigley, and C. D. Corum, for appellant. A. L. Shortridge and W. D. Steele, for respondent.

ELLISON, J.

This action is for personal injuries received by plaintiff, which she alleges was through the negligence of defendant in failing to keep one of its streets in repair. The judgment was for the plaintiff in the trial court.

The defendant is a city of the fourth class and maintained its streets by excavating gutters or drains on the sides of the roadway and elevating the roadway in the center and by constructing sidewalks near the lines of the streets. To connect these walks crossings were put in at street intersections. At the place where plaintiff was injured, the gutter was shown to be somewhere between 2 and 2½ feet below the crossing at that point. Tiling, about 5 feet in length and 15 inches in diameter, was placed in the gutter under the crossing with gravel on top of it, and on this was placed a flagstone 3 feet wide and near 6 inches thick. There was no railing, nor was there a light, and this constituted the crossing over which pedestrians passed to the sidewalk. Plaintiff, with her husband and sister-in-law, had been attending a night church meeting near by and were returning home. She was familiar with the crossing. On arriving at the gutter her sister-in-law passed over first; plaintiff following with her husband just behind her. Plaintiff stepped off the edge of the crossing and fell into the gutter, receiving injuries, the severity of which is not questioned by defendant and therefore need not be dwelt upon.

Defendant insists that no case was made for the plaintiff, and that its demurrer to the evidence should have been sustained. We concede that towns and cities must be allowed to maintain their streets with gutters or drains on the sides so as to carry away surface waters, thereby improving the street for travel and protecting the health of the inhabitants, and that, necessarily, there must be a covering over the gutter at crossings, making a passageway for the convenience of the people in passing from one side of the street to the other. This way over the gutter is, ordinarily, in some degree, greater or less, more dangerous than the crossing at other...