Gist v. City of St. Joseph

• Decision Date: 05 April 1920
• Docket Number: No. 13339.,13339.
• Citation: 220 S.W. 722
• Parties: GIST v. CITY OF ST. JOSEPH
• Court: Missouri Court of Appeals

220 S.W. 722

GIST v. CITY OF ST. JOSEPH

No. 13339.

Kansas City Court of Appeals. Missouri.

April 5, 1920.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by F. H. Gist against the City of St. Joseph. From a judgment for plaintiff, defendant appeals. Reversed.

Stigall, Meyer & Hamm, of St. Joseph, for appellant.

Sherman & Otis, of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff fell, and broke his leg, on a sidewalk in the city of St. Joseph. He brought this suit alleging in his petition that

"On the 16th day of February, 1910, as he was proceeding in a northerly direction on the sidewalk a short distance north of a grocery store known as 6050 King Hill avenue and between said store and another grocery store known as 6030 King Hill avenue, he was caused to trip, stumble against, and be thrown violently to the sidewalk by reason of an accumulation of rough, uneven ice then and there existing upon the said sidewalk in lumps, ridges, and projections over and above the surface of said sidewalk," etc.

He recovered judgment in the sum of $2,000, and the city has appealed.

The sidewalk in question was in that part of the city known as South St. Joseph, and, though evidently not in the main business district thereof, was a well-traveled thoroughfare. The notice which, in obedience to the statute, plaintiff gave to the city on March 21, a month and five days after the accident, stated that Ins fall occurred at "a point on said sidewalk just north of the grocery store at 6050 King Hill avenue and between that store and a grocery store at 6030 King Hill avenue." According to plaintiff's estimate, the distance between the two grocery stores was 150 feet, while according to the measurements given by the city engineer that distance was 204 feet. Between them, the land was vacant except for two cottages, one of which was 50 feet north of Wood's grocery store at 6050 King Hill avenue. Plaintiff's evidence shows that he fell at a point directly in front of the middle of said cottage, and this point is about 58 feet north of the north line of Wood's grocery store.

Plaintiff's fall occurred about 9:30 Sunday morning. The day was clear and cold, and plaintiff, although not in a hurry, was "stepping a little briskly." His eyesight was good and he was looking north, "just looking straight ahead like any ordinary person walking along the street." There was an awning in front of Wood's grocery store and no snow was on the sidewalk under it. Plaintiff lived at 6508 King Hill avenue, and encountered snow and ice on the sidewalk as he came up that morning, though he said it was "cleaned in the business district."

The snow and ice, on the part of the street in the vicinity of the accident, extended over the entire width of the sidewalk and from Wood's grocery store on north plaintiff did not know how far, because he got no further than the point of his fall. But from the north line of Wood's grocery store up to the point where he fell, he walked on the snow and ice. According to the testimony of other witnesses for plaintiff, the snow and ice "as a general thing was all over the whole walk, and not only that walk but others," and there were no cleaned places with the exception of that under the Wood awning. Plaintiff says he passed over the walk on Saturday the day before, both morning and evening, and that the walk was largely in the same condition Saturday morning as it was when he fell; the snow being soft on top when he passed over it Saturday evening, but frozen hard Saturday morning.

A careful examination of the entire record fails to disclose any evidence of ice or snow "in lumps, ridges, and projections," as alleged in the petition and which is ordinarily required in order to constitute an obstruction on the street rendering the city liable. There was testimony that the ice and snow extended across the sidewalk and continuously along it, and was "rough and uneven"; but this condition was merely the result of footprints made in the snow and slush while it was soft which afterwards froze hard when the temperature went down. Plaintiff was asked the cause of this rough condition and answered:

"Well, from what I would determine the cause of that, that it would be sort of walked on while it was soft.

"Q. All the roughness there was, was caused by the footprints in the snow on that pavement; that is right, isn't it? A. It had been walked on while it was soft and frozen that way. * * *

"Q. Now, then, how deep did you say these footprints were, as they were along here in the snow? A. Well, somewhere about an inch and a half, possibly.

"Q. And simply caused by footprints on there? A. Yes, sir. * * *

"Q. Now, then, this ice that was here, this rough, uneven condition that you speak of, all that did that was simply, as I understood you to say awhile ago, caused by footprints made in the soft snow and then freezing? A. Yes, sir." Other testimony offered by plaintiff showed that there was snow and ice on the sidewalk which was rough, but such testimony also showed that...