Hale v. Kansas City, Mo.
| Decision Date | 02 April 1945 |
| Parties | Cornelia Sammons Hale et al. v. Kansas City, Missouri, a Municipal Corporation |
| Court | Kansas Court of Appeals |
Error to Jackson Circuit Court; Hon. Albert A. Ridge, Judge.
Affirmed.
William E. Kemp, David M. Proctor and Arthur R. Wolfe for plaintiff in error.
(1) The trial court erred in refusing defendant's demurrer. (a) Prewitt v. Eddy, 115 Mo. 283, 21 S.W. 742; Sissel v. St. L. & S. F. R. Co., 214 Mo. 515, 113 S.W. 1104, 15 Am. Cas. 429; Milburn v. Kansas City, St J. & C. B. R. Co., 86 Mo. 104; 45 C. J. 945, 969 and 970; Houts, Missouri Pleading and Practice, Vol. 1, Sec. 102 p. 167; O'Neill v. City of St. Louis, 292 Mo 656, 239 S.W. 94; McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33; (b) Logan v. Wabash R. Co. (K. C.), 96 Mo.App. 461, 70 S.W. 734; South Side Realty Co. v. St. Louis & S. F. R. Co. (Spgd), 154 Mo.App. 364, 134 S.W. 1034; Evans v. Wabash R. Co. (Mo. App.), 12 S.W.2d 767. (2) The trial court erred in giving Instruction "1." Ruch v. Pryor et al. (Mo. App.), 190 S.W. 1037; Campbell v. City of Stanberry, 85 Mo.App. 159; Schlereth v. Missouri Pac. R. Co., 96 Mo. 509, 10 S.W. 66; Houts, Missouri Pleading and Practice, Vol. 1, Sec. 350, p. 622; Franz v. Hilterbrand et al., 45 Mo. 121; Vance v. Anderson (K. C.), 215 Mo.App. 525, 255 S.W. 322; Gunn v. Hemphill Lumber Co. (Mo. App. -- Spgd.), 218 S.W. 978. (3) The trial court erred in refusing to set aside the verdict of the jury. Franz v. Hilterbrand et al., 45 Mo. 121; Monan v. Arkansas Gro. Co., 216 Mo.App. 289, 264 S.W. 486; 17 C. J., Sec. 336, pp. 1038-39; Gates v. Chicago & A.R. Co., 44 Mo.App. 488.
Howell, Jacobs & Howell, Virgil Yates and James W. Broaddus for defendants in error.
In determining whether plaintiffs were guilty of contributory negligence as a matter of law, evidence in their favor must be accepted as true and the whole evidence viewed most favorably to them (Cento v. Security Building Company (Mo.), 99 S.W.2d 1, l. c. 6.) "In order for the contributory negligence of a plaintiff to bar recovery the evidence must conclusively show such negligence" (Nickelson v. Cowan (Mo. App.), 9 S.W.2d 534, l. c. 536). It is likewise the law in this State that if reasonable and fair-minded men might draw different inferences and conclusions as to plaintiffs' conduct then the question of contributory negligence becomes one of fact, and not of law. Aleckson v. Railway Company, 213 S.W. 894, l. c. 896.
This suit was brought in the Circuit Court of Jackson County, for damages alleged to have been caused by the flooding of a four-story building belonging to the defendants in error in Kansas City, on June 27, 1941, which damages are claimed to have been the direct result of alleged negligence of the plaintiff in error. Upon trial to a jury, verdict was rendered in favor of the defendants in error in the sum of $ 4000. Judgment was entered accordingly. Appeal was thereafter taken, later dismissed, and the cause is now before us on a writ of error issued at the instance of plaintiff in error.
The defendants in error and the plaintiff in error will hereinafter be referred to as plaintiff and defendant, respectively, in which capacities they appeared in the trial court.
Plaintiffs' petition in substance alleged that on June 27, 1941, and long prior thereto, they were the owners of the building and real estate situate at 3017-19 Wyoming Street, Kansas City, Jackson County, Missouri, occupied by the Central Bag Company; that on said date said Bag Company carried on its business of manufacture and sale of bags, cards and boxes, and had a large amount of various kinds of property in said building; that there were installed in said building, among other equipment, a sprinkler system and boiler, and on said date and on the following day said building and equipment were damaged by the negligence of defendant in permitting the storm sewers, operated and controlled by defendant in the vicinity of said building, to become flooded so the said sewers would not carry off the heavy rain then falling, and as a result of said negligence said water entered said building and damaged the same, causing walls and floors to crack, and injuring said sprinkler system and other equipment; that said storm sewers were controlled and operated by the defendant, together with the flood gate in connection therewith, over which plaintiffs had no control, but which were wholly and exclusively within the control of defendant, its agents, servants and employees; that the exact cause of said storm sewers backing up and flooding, and causing water to flow into the plaintiffs' premises aforesaid to the depth of several feet is unknown to the plaintiffs, but such knowledge is peculiar to and in the possession of the defendant; that such damage would not have resulted but for the negligence and carelessness of the defendant in the operation and control of said storm sewer system in the vicinity of plaintiffs' property; that as a direct result of said negligence of the defendant in permitting the said storm sewers to flood or back water into said building and premises, said building and equipment therein were damaged in the sum of $ 1500. Plaintiffs further alleged the giving of legal notice to the defendant prior to the action.
The answer of the defendant was a general denial.
On the first day of the trial, June 2, 1943, plaintiffs, by leave of court, amended their petition by interlineation, changing the amount sued for to $ 4000.
That part of the evidence which is undisputed is as follows:
The plaintiffs are the owners of the building and premises described in the petition. It is a four-story brick and mill constructed building located at 3017-19 Wyoming Street, Kansas City, fronting westward on Wyoming Street; that it was built about 1901, and for many years after its construction, was used by its original builders and owners in connection with the manufacture of mattresses and related articles, necessitating storage, machinery, and heavy loading of all parts of the building. On the south side of the building and as a part of the premises was a parking lot. There was a loading door some twelve feet wide on the south side of the building, leading into the basement. The base of this door is slightly lower than the highest point in the adjacent parking lot, and there is a drainage ditch about eight inches wide just outside of and along said doorway, and another drain in the said parking lot about twenty feet away at a lower point in said lot. The building, while constructed as one building, is referred to as consisting of the "north" and "south" buildings, the floor level of the bottom or basement floor of the north half of the building being some two or two and a half feet higher than that of the south half of the building. The present tenant, the Central Bag Company, has occupied the building since 1937. The bottom floor level is covered with concrete. The immediate grade to the loading entrance door into the building from the south parking lot is slightly toward said door.
Between 1919 and 1922, defendant designed and constructed a sewer project known as the Turkey Creek Sewer, to prevent the overflow of Turkey Creek and the flooding of the vicinity thereof. The project involved changes in the channel of said creek, diversion of its natural flow into other channels by ditches and drains, and a flood gate to prevent backwater from the Kaw River, so as not to thwart the protection afforded by the new dike construction at the Kaw, and a pumping station to force surface waters from the area into the Kaw through supplementary channels when the high waters of the Kaw made it necessary to close the flood gate in the main sewer. The system also included all necessary laterals, connections, manholes, catch basins and other parts essential to a complete sewer system. Accordingly, Turkey Creek Sewer District was established, in which plaintiffs' property is situated. The pumping station was located at 28th Street and Southwest Boulevard. Thereafter, between 1919 and 1922, the said sewer project was constructed and was at the time in question owned, maintained, and under the control of the defendant city. The purpose of the city ordinance authorizing said project was stated therein to be "in order to completely and successfully sewer and drain the area embraced within said Joint Sewer District."
The diameter of the sewer that goes into the pumping station is sixty inches. From the direction of Kansas City proper and located in Southwest Boulevard, is a sewer thirty-six inches in diameter, which joins with one from another direction, fifty-four inches in diameter, both emptying into the said main 60 inch sewer through the pumping station, which, in turn, empties into the main Turkey Creek Sewer, twelve feet, ten inches in diameter, leading to the Kaw River.
On one side of this pumping station there is installed a sluice gate five feet in diameter which, when lowered, closes the 60 inch sewer. The gate has a screw gear on it which, when turned, raises or lowers the gate as desired, and when so raised, the gate opens the sewer for flowage. The raising or lowering of the gate is done by means of a rod with a T-handle, operated from above.
The purpose of the gate was described by a witness, employee of the Engineering Department of the defendant, as follows:
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