Hammack v. City of Sedalia

• Decision Date: 23 April 1937
• Docket Number: No. 5793.,5793.
• Parties: HAMMACK v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

105 S.W.2d 34

HAMMACK v. CITY OF SEDALIA.

No. 5793.

Springfield Court of Appeals. Missouri.

April 23, 1937.

Rehearing Denied May 28, 1937.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

"Not to be published in State Reports."

Suit by Anna Rose Hammack against the City of Sedalia. From a judgment for plaintiff, defendant appeals.

Affirmed.

Herman Pufahl, of Bolivar, and Fred F. Wesner, of Sedalia, for appellant.

E. E. Thompson, of Kansas City, John C. McCloskey, of Sedalia, and Elvin S. Douglas, of Bolivar, for respondent.

FULBRIGHT, Judge.

This is a suit for personal injuries alleged to have been caused when plaintiff stepped in a water meter box alleged to have been negligently constructed, and permitted to remain for a long period of time in an unsafe condition in the parkway between the vehicular traveled portion of Seventh street and the sidewalk; said Seventh street being a public street and thoroughfare of the defendant city. The plaintiff recovered in the sum of $2,500 and defendant appealed.

The petition stated the facts upon which the suit was based. The answer was a general denial. Contributory negligence was not pleaded, and the case was tried on the theory that contributory negligence was not involved. No contention was made in the trial court that respondent failed to assert ordinary care for her safety. No controversy arose over the pleadings, hence it is unnecessary to set them out at length. Such testimony will be set out in the opinion as is necessary to pass upon the issues involved.

Only two assignments of error are urged by appellant; the giving of instruction No. 1, and that the verdict is excessive. They will be considered in the order given.

Respondent's instruction No. 1, about which appellant complains, reads as follows:

"The court instructs the jury that if you find and believe from the evidence that Seventh Street was at all times mentioned in evidence a public street and thoroughfare in the City of Sedalia, Missouri, and if you further find that there was during all said times a parkway on the north side of said Seventh Street situated between the north curb thereof and the sidewalk on the north side of said Seventh Street, and if you further find that in and as a part of said parkway there was, at all times mentioned in evidence, the water meter box mentioned in evidence consisting of a hollow tile structure imbedded in the ground of said parkway and having thereon an iron neck covered with a metal cover or lid which protruded above the ground of said parkway and that said neck and cover or lid of said water meter box constituted a part of said parkway, if you so find, then you are instructed it was the duty of defendant, City of Sedalia, to exercise ordinary care to keep and maintain said parkway, including said water meter box and the cover or lid thereon, in a reasonably safe condition for ordinary use of pedestrians, including Anna Rose Hammack, and that it was the duty of defendant, City of Sedalia, to use ordinary care in inspecting said Seventh Street, including the aforesaid parkway thereof, to ascertain what, if any, defects there might be in said parkway which would or might prove dangerous to persons walking upon said parkway (italics ours); and

"You are, therefore, further instructed that if you find and believe from the evidence that Anna Rose Hammack was injured on September 30, 1934, at the place referred to in evidence and that she caused the notice mentioned in evidence to be served upon the mayor of Sedalia within ninety days from the date she was injured, if so, and if you further find that on said September 30, 1934, defendant, City of Sedalia, negligently, if so, permitted or allowed, if so, the lid or cover on the aforesaid water meter box to be loose, if so, and insecure, if so, so that said lid did not fit firmly on said water meter box, if so, and that defendant, City of Sedalia, negligently, if so, permitted or allowed, if so, said cover or lid on said water meter box to be maintained without having thereon the bolt and nut described in evidence, if you so find, designed to fasten said cover on said water meter box, if you so find, and that by reason thereof said lid or cover would slip, slide, tilt and get out of position when the weight of a person was applied to one side thereof, if you so find, and that said parkway at said place was thereby rendered dangerous, if so, and not reasonably safe for persons to pass along, upon and over, if you so find, and that said conditions existed on said 30th day of September, 1934, and long prior thereto, if you so find, and that defendant, City of Sedalia, knew or by the exercise of ordinary care could have known of said dangerous, if so, and unsafe condition, if so, of said parkway at said time and long prior thereto, if so, for the defendant, City of Sedalia, by the exercise of ordinary care to have abated, if so, remedied, if so, and removed, if so, said conditions and dangers, if any, before said Anna Rose Hammack was injured, if you so find, and that defendant, City of Sedalia, failed and omitted to exercise ordinary care so to do, if so, and was thereby negligent, if so, and that on said 30th day of September, 1934, said Anna Rose Hammack was walking upon said parkway at the time and place mentioned in evidence, if you so find, and that while so using said parkway, she stepped upon said lid or cover on said water meter box and that same slipped, slid and tilted, if you so find, and caused her to fall, if so, and her left leg to be precipitated into said hole, and that she was thereby injured, if so, as a direct result thereof, if so, and that said fall and injuries, if any, resulted directly from said dangerous and not reasonably safe conditions, if any, of said parkway, and the negligence of defendant, if any, as submitted in this instruction, if so, then you are instructed that under the above circumstances, if you so find them, your verdict must, in any event, be in favor of plaintiff, Anna Rose Hammack, and against defendant, City of Sedalia."

Instruction No. 3 given by the court on behalf of respondent is as follows:

"The court instructs the jury that by the terms `negligent,' `negligence,' and `negligently,' as used in the instructions herein, is meant the failure to use or exercise ordinary care, and by the term `ordinary care' as used in the instructions herein, is meant such care as an ordinary careful and prudent person would use and exercise under the same or similar circumstances."

The chief complaint of appellant is lodged against that part of instruction No. 1 set out in italics and in support of its contention, relies upon the following cases: Francis v. City of West Plains, 203 Mo.App. 249, 216 S.W. 808, 810; Cooper v. City of Caruthersville (Mo.App.) 264 S.W. 46, 48, and McCall v. City of Butler (Mo.App.) 285 S.W. 1018, 1020.

The rule in this state is well settled that a city is only required to exercise ordinary care to see that its streets and sidewalks are kept in a reasonably safe condition. It is equally well settled that the rule applicable to the sidewalks and vehicular portion of the street applies to the parkway between them. Fockler v. Kansas City, 94 Mo.App. 464, 68 S.W. 363; Smith v. City of St. Joseph, 225 Mo.App. 886, 35 S.W. (2d) 975.

Instruction No. 1 imposes no greater duty on appellant in the instant case than is required by the rule above stated. We do not think this instruction is in conflict with any of the authorities cited by appellant, especially when read as a whole and in connection with instruction No. 3, but, on the contrary, is in harmony with the holdings therein. Appellant quotes from the case of Francis v. West Plains, supra, as follows:

"This instruction is clearly erroneous in the degree of care which is placed upon a city in the maintenance of its streets and sidewalks. It, by making it the absolute and unqualified duty of the defendant to keep its sidewalks in reasonably safe condition, makes the city an out and out insurer. The terms as used place a higher degree of care on the city than the highest degree of care. The rule has prevailed in this state for years that a city is only required to exercise reasonable and ordinary care and diligence in making its streets and sidewalks reasonably safe for the public."

That part of the instruction in the Francis Case against which this criticism is directed is as follows:

"The court instructs the jury that it is by law made the absolute and unqualified duty of defendant city to keep its sidewalks and streets in a reasonably safe condition for the use of pedestrians using the same for travel."

There is no similarity in this instruction to that given in the instant case. As the court held in the Francis Case, the above instruction imposes an absolute and unqualified duty on the defendant to keep its sidewalks and streets in a reasonably safe condition. The instruction in the case before us, on the contrary, imposes on the appellant the duty "to exercise ordinary care to keep and maintain said parkway, including said water meter box and the cover and lid thereon, in a reasonably safe condition for the use of pedestrians, * * * to use ordinary care in inspecting said Seventh street, including the aforesaid parkway thereof, to ascertain what, if any defects there might be in said parkway which would or might prove dangerous to persons walking upon said parkway."

The meaning of the language quoted from the instruction in the Francis Case cannot be read into the instruction before us, nor do we think the instruction in the instant case can be so distorted as to convey the same meaning as is conveyed in the instruction in the Francis Case.

After condemning the instruction in the Francis Case, the court said: "The rule has prevailed in this state for years that a city is only required to exercise reasonable and ordinary care and diligence [italics ours] in making its streets...