Gallagher v. City of Tipton

• Decision Date: 02 January 1911
• Citation: 133 S.W. 135,152 Mo. App. 412
• Parties: GALLAGHER v. CITY OF TIPTON.
• Court: Missouri Court of Appeals

133 S.W. 135

152 Mo. A. 412

GALLAGHER v. CITY OF TIPTON.

Kansas City Court of Appeals. Missouri.

January 2, 1911.

Rehearing Denied January 16, 1911.

MUNICIPAL CORPORATIONS (§ 796)—TORTS—DEFECTIVE CROSSING.

There can be no recovery for injuries to a pedestrian from stepping off from a gutter crossing constructed on a general plan of street improvement adopted by a city, but if the crossing is not an ordinary one over a gutter, but the city has negligently constructed the crossing over a deep hole, without placing guard rails at the crossing, or maintaining a street light there, the city will be liable for injuries received from stepping off from such a crossing.

Appeal from Circuit Court, Cooper County; William Martin, Judge.

Action by Thyrza Gallagher against the city of Tipton. Judgment for plaintiff, and defendant appeals. Affirmed.

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

JOHNSON, J.

This is an action to recover damages for personal injuries which plaintiff alleges she sustained through the negligence of defendant, a city of the fourth class, in failing to keep one of its streets in repair. We considered the case on a former appeal of defendant from a judgment recovered by plaintiff, and held that plaintiff's evidence presented issues of fact for the jury to determine, but we reversed the judgment and remanded the cause on account of error in the instructions. 133 Mo. App. 557, 113 S. W. 674. A subsequent trial resulted again in a judgment for plaintiff, and defendant again has appealed.

The evidence adduced at the second trial does not differ materially from that we considered on the former appeal, and we refer to the opinion then delivered for a statement of the case. We thought then, and still think, that if this were a case where plaintiff stepped off a gutter crossing constructed and maintained on a general plan of street improvement adopted and pursued by the city, there could be no recovery, but it appears from the evidence of plaintiff that this was not an ordinary crossing over an ordinary gutter, but that the city had negligently constructed the crossing over a deep hole or washed out place without filling the hole to reduce the gutter at that place to proper depth and width, or without placing guard rails at the crossing, or without maintaining a street light there to show pedestrians the way on a dark night. Obviously a narrow and unguarded...