Guy v. Kansas City, No. 43277

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation257 S.W.2d 665
PartiesGUY v. KANSAS CITY
Docket NumberNo. 2,No. 43277
Decision Date13 April 1953

Page 665

257 S.W.2d 665
GUY

v.
KANSAS CITY.
No. 43277.
Supreme Court of Missouri, Division No. 2.
April 13, 1953.
Motion for Rehearing or to Transfer to Court en Banc Denied
May 11, 1953.

David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, Henry Arthur, Assistant City Counselor, Kansas City, for appellant.

David R. Hardy and James H. Ottman, Kansas City, and Sebree, Shook, Hardy & Ottman, Kansas City, of counsel, for respondent.

BARRETT, Commissioner.

In this action against Kansas City for damages for personal injuries Mrs. Nellie Gatewood was awarded a judgment of $25,000. On September 2, 1948, Mrs. Gatewood, then seventy-one years of age, was a passenger on a bus. As she alighted from the bus at 27th and Holmes Streets she stepped upon a broken curbing, turned her ankle, and fell. The fall resulted in serious personal injuries. The curbing had been

Page 666

broken for a period of nine months to two years. In the plaintiff's petition and instructions the broken curbing was described as being at the bus stop 'for a distance of approximately two to three feet.' It was a 'crumbled, worn and broken place with a sharp edge and abrupt drop of approximately four inches.'

Instruction number one hypothesized the city's liability and the plaintiff's right to recover. The instruction began by stating that it was the city's duty to maintain its streets and curbing 'in a reasonably safe condition for persons traveling thereover while exercising ordinary care for their own safety.' The instruction then hypothesized the facts, which the jury was to find, concerning the curbing, that the city knew of the broken curbing and could have repaired it, but negligently failed to do so, that the plaintiff did not know of the condition and, while exercising due care for her own safety, fell and was injured as the direct result of the city's negligence. There was also an instruction that Mrs. Gatewood had a right to assume that the curbing was reasonably safe for travel. That part of the instruction hypothesizing the facts is as follows:

'* * * that on September 2, 1948, there was in the east curbing of Holmes Street at or near the usual stopping place for northbound Public Service Company buses at 27th and Holmes Streets, if any, a crumbled, worn and broken place with a sharp edge and abrupt drop of approximately 4 inches at the south end thereof, if so, and if you further find that the defendant by the exercise of ordinary care should have known of the existence of said broken and crumbled space, if any, in time by the exercise of ordinary care to have repaired said broken and crumbled space before the time of plaintiff's injury, if so, but that the defendant negligently (if you so find) permitted said broken and crumbled space to be and remain in the condition aforesaid at said time and place, * * *.'

Upon this appeal the appellant city insists that this instruction is prejudicially erroneous in that after describing and submitting the facts concerning the curbing the instruction omits and fails to require a finding that the hypothesized condition of the curbing was 'dangerous or not reasonably safe.' and, in addition, assumes the fact to be that it was dangerous and not safe. The respondent admits that the instruction does not contain this requirement but urges that the instruction correctly hypothesizes the city's duty to maintain its streets in a reasonably safe condition and is not prejudicially erroneous even though it be said that the instruction assumes that the curbing was not in a reasonably safe condition. It is said that there was no real dispute as to the fact that the curbing was defective and unsafe, the case was tried upon the theory that there was no contention to the contrary, that the city's instructions made the same assumption, and that, all the instructions considered, the issues were fairly submitted to the jury and instruction one was not and could not be prejudicially erroneous. In addition it is urged that the phrase 'negligence, if any' at the close of the instruction ('if you find that her fall and injury, if any, were the direct result of the negligence, if any, of the defendant') contemplated the negligent violation of the duty to maintain the curbing in a reasonably safe condition by permitting the defective and described condition to come into being and to remain in existence.

The city of necessity admitted the fact that the curbing was in the condition described by the witnesses and shown by the photographs, but it did not admit that...

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4 practice notes
  • Pagan v. City of Kennett, No. 8661
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1968
    ...the pedestrian can use them with safety to himself, if he uses ordinary and usual care for his own safety. '' Guy v. Kansas City, Mo., 257 S.W.2d 665, 667; Hart v. City of Butler, Mo., 393 S.W.2d 568, 577(10). See Ryan v. Kansas City, 232 Mo. 471, 482--483, 134 S.W. 566, 569; Taylor v. Kans......
  • Hart v. City of Butler, No. 50844
    • United States
    • United States State Supreme Court of Missouri
    • September 13, 1965
    ...yet the pedestrian can use them with safety to himself, if he uses ordinary and usual care for his own safety.'' Guy v. Kansas City, Mo., 257 S.W.2d 665, 667; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 564. Essentially the same contention was made in objections to similar instructi......
  • Ezell v. Kansas City, No. 43248
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1953
    ...says that plaintiff's case was stated (and submitted, although by an erroneous instruction, see Guy v. Kansas City, Mo.Sup., 257 S.W.2d 665) as upon negligence in failing to keep its streets in a reasonably safe condition for travel, specifically in causing and permitting a hole to be in th......
  • Wagner v. Missouri-Kansas-Texas R. Co., MISSOURI-KANSAS-TEXAS
    • United States
    • United States State Supreme Court of Missouri
    • January 10, 1955
    ...specific language that the defect hypothesized thereby made the street not reasonably safe for travel. See: Guy v. Kansas City, Mo.Sup., 257 S.W.2d 665. In the recent case of Reese v. Illinois Terminal R. Co., Mo.Sup., 273 S.W.2d 217, 222, an F.E.L.A. case, this court held that it was rever......
4 cases
  • Pagan v. City of Kennett, No. 8661
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1968
    ...the pedestrian can use them with safety to himself, if he uses ordinary and usual care for his own safety. '' Guy v. Kansas City, Mo., 257 S.W.2d 665, 667; Hart v. City of Butler, Mo., 393 S.W.2d 568, 577(10). See Ryan v. Kansas City, 232 Mo. 471, 482--483, 134 S.W. 566, 569; Taylor v. Kans......
  • Hart v. City of Butler, No. 50844
    • United States
    • United States State Supreme Court of Missouri
    • September 13, 1965
    ...yet the pedestrian can use them with safety to himself, if he uses ordinary and usual care for his own safety.'' Guy v. Kansas City, Mo., 257 S.W.2d 665, 667; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 564. Essentially the same contention was made in objections to similar instructi......
  • Ezell v. Kansas City, No. 43248
    • United States
    • United States State Supreme Court of Missouri
    • July 13, 1953
    ...says that plaintiff's case was stated (and submitted, although by an erroneous instruction, see Guy v. Kansas City, Mo.Sup., 257 S.W.2d 665) as upon negligence in failing to keep its streets in a reasonably safe condition for travel, specifically in causing and permitting a hole to be in th......
  • Wagner v. Missouri-Kansas-Texas R. Co., MISSOURI-KANSAS-TEXAS
    • United States
    • United States State Supreme Court of Missouri
    • January 10, 1955
    ...specific language that the defect hypothesized thereby made the street not reasonably safe for travel. See: Guy v. Kansas City, Mo.Sup., 257 S.W.2d 665. In the recent case of Reese v. Illinois Terminal R. Co., Mo.Sup., 273 S.W.2d 217, 222, an F.E.L.A. case, this court held that it was rever......

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