Guy v. Kansas City

• Decision Date: 13 April 1953
• Docket Number: No. 2,No. 43277,43277,2
• Citation: 257 S.W.2d 665
• Parties: GUY v. KANSAS CITY
• Court: Missouri Supreme Court

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 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 the fact of the broken and crumbled curbing for a distance of two and a half to three feet with a depth of four inches rendered or made the curbing dangerous and unsafe for use. On the contrary the city has maintained throughout, despite the crushed and broken curbing, that the way was not so dangerous and unsafe fur use as to constitute negligence. The city sought to suggest the inference that Mrs. Gatewood slipped and fell on the steps of the bus, that she saw or had she looked where she was walking, she would not have fallen on the broken curbing and the city offered instructions on these subjections. Although not required to be found in instruction one, the plaintiff in her petition, stated that 'All of said defects and defective conditions were dangerous to persons lawfully using said street, curbing and area and particularly to persons entering or alighting from Northbound buses.'

As urged, the instruction correctly stated the city's abstract duty to maintain its curbing in a reasonably safe condition, McCormick v. Kansas City, Mo.Sup., 250 S.W.2d 524, but the basis of the city's liability, its negligence, consists in the breach of that duty to maintain its public ways in a reasonably safe condition. 19 McQuillin, Municipal Corporations, Secs. 54.09, 54.14. The breach of duty and hence negligence consists not alone in the defective street or curbing, but in the permitting and maintenance of a defective public way which is not reasonably safe but dangerous by reason of the defect. The defect complained of must be one calculated to cause injury and for that reason dangerous and unsafe for normal use. Reno v. City of St. Joseph, 169 Mo. 642, 70 S.W. 123; 63 C.J.S., Municipal Corporations, Sec. 807(b)(2), page 133. The determinative factor the jury is to find, in addition to the physical facts complained of, for example the broken curbing, is that those facts constituted an unsafe, insecure and dangerous condition; that the described condition was not reasonably safe. Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180. The city is not liable for trivial defects or, more accurately, for defects which do not render the public way unsafe and dangerous and the essential question in each case is whether the particular defect complained of makes the way dangerous and unsafe. Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. In connection...