Gibbs v. City of Monett

• Decision Date: 01 April 1912
• Citation: 145 S.W. 841
• Parties: GIBBS v. CITY OF MONETT.
• Court: Missouri Court of Appeals

145 S.W. 841

GIBBS v. CITY OF MONETT.

Springfield Court of Appeals, Missouri.

April 1, 1912.

1. MUNICIPAL CORPORATIONS (§ 768)—DEFECTIVE SIDEWALK—ALLEY CROSSINGS— GENERAL PLAN.

Where an alley consisted of an open ditch about 18 inches deep from the top of the sidewalk, which it crossed, and the city constructed a board crossing consisting of only three planks about seven feet long laid on a line with the south side of the walk, and extending north but three feet, leaving considerable sidewalk space leading down to the alley entirely unprotected, the city could not claim that it was free from negligence because that method was according to its general plan of street improvement.

2. MUNICIPAL CORPORATIONS (§ 821)—DEFECTIVE SIDEWALKS—INJURIES TO PEDESTRIANS.

Evidence that plaintiff who was injured by walking off a sidewalk into a deep alley had walked over the crossing several times prior to her injury, but had never observed that the plank crossing the alley was not as wide as the walk, did not convict her of contributory negligence, as a matter of law.

3. MUNICIPAL CORPORATIONS (§ 822)—INJURIES ON STREETS—INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

Where, in an action for injuries to a pedestrian by stepping off a sidewalk into an alley ditch, plaintiff testified that she had not noticed the depth of the ditch or that the plank crossing was not as wide as the walk because grass and weeds were growing about the place, and defendant's witnesses also testified regarding the grass and weeds, the court did not err in instructing that if, on account of the darkness or the presence of grass or weeds, plaintiff could not see the condition of the walk, she was entitled to recover, was not objectionable because negligence as to the grass and weeds was not pleaded.

4. MUNICIPAL CORPORATIONS (§ 822)—INJURIES ON SIDEWALKS—INSTRUCTIONS.

Such instruction was also appropriate on the issue of contributory negligence.

5. APPEAL AND ERROR (§ 690)—EVIDENCE— PHOTOGRAPHS—RECORD.

The admission of certain photographs in evidence could not be reviewed where they were not in the record.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by Mrs. C. E. Gibbs against the City of Monett. Judgment for plaintiff, and defendant appeals. Affirmed.

John T. Burgess and T. D. Steele, both of Monett, for appellant. Sizer & Kemp, of Monett, for respondent.

GRAY, J.

Plaintiff was injured while walking on Bond street, a public street in the defendant city. Bond street runs east and west, and, according to plaintiff's testimony was much traveled. Between Sixth and Seventh streets, which run north and south, Bond street is crossed by an alley. On the south side of the street, and extending east to the alley, a sidewalk had been constructed four feet wide. The alley was an open ditch about 18 inches deep from the top of the walk. To enable persons to pass over the alley, the city had constructed a board crossing, consisting of three planks about seven feet long, laid on a line with the south side of the walk, and extending north three feet.

Plaintiff lived about 250 feet from the crossing, and had passed over the same a number of times by day and night previous to the time she was injured. She testified, however, that she had not noticed until after she was injured that the plank crossing was not as wide as the walk. On the night she was injured, she attended church with another family, consisting of a man and his wife and baby. After church they started to plaintiff's home and were walking on the sidewalk on Bond street, just west of the plank crossing. They were traveling east, and the husband was walking in front pushing a baby carriage. The plaintiff and the other lady were following, the plaintiff walking on the outside. The night was very dark and there were no lights, and, as plaintiff walked along on the north side of the walk, she missed the planks and stepped into the open ditch, and received her injuries.

The answer consisted of a general denial and a plea of contributory negligence. The cause was tried before a jury at the July term, 1911, of the Barry county circuit court, resulting in a verdict for plaintiff in the sum of $350, and, from the judgment rendered thereon, defendant appealed.

Appellant's first contention is that the court should have sustained the demurrer to the evidence. This contention is based on two grounds: First, that the evidence failed to show that the city was guilty of any negligence; and, second, that plaintiff was guilty of contributory negligence, as a matter of law.

The city contends that the crossing was constructed and maintained on a general plan of street improvement adopted and pursued by the city, and therefore it is not liable for the condition of the crossing. The city offered to prove that other crossings in the city were not as wide as the one where plaintiff was injured. This testimony was excluded, but the court offered to permit the city to prove that such crossings were in usual use in the city where the same were over ditches similar to the alley where plaintiff was injured. The defendant pursued the question no further.

In Kuntsch v. New Haven, 83 Mo. App. 174, the court said: "The general rule is that the officers of municipal corporations in...