Hannan v. City
| Decision Date | 15 February 1915 |
| Citation | 173 S.W. 703,187 Mo.App. 315 |
| Parties | JAMES M. HANNAN, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
Judgment affirmed.
A. F Evans and Francis M. Hayward for appellant.
The court erred in not giving the peremptory instruction asked by defendant at the conclusion of all the evidence in the case. Gulath v. St. Louis, 179 Mo. 38; Brash v. St. Louis 161 Mo. 433, 438.
Eugene Batavia for respondent.
(1) Under the law and the evidence, the court properly submitted the case to the jury. It could not do otherwise. Haney v City of Kansas, 94 Mo. 334, 337; Woods v. City of Kansas, 58 Mo.App. 273, 280; Brash v. St. Louis, 161 Mo. 433, 438-440. (2) Instruction 3 asked by defendant and given by the court stated the law applicable to the issues in a manner most favorable to the defendant. The issues submitted by said instruction were for the jury and not for the court to determine. Haney v. City of Kansas, 94 Mo. 334, 337; Woods v. City of Kansas, 58 Mo.App. 273, 280; Brash v. St. Louis, 161 Mo. 433, 438-440.
This is an action to recover damages alleged to have been caused by negligence of defendant city in failing to maintain a public sewer in proper repair. The defense, in substance, is, that the sewer was constructed by the city in 1901, according to plans adopted by the city while acting in its governmental capacity, that ordinary care was observed in maintaining it in proper repair, and that the damage sustained by plaintiff was caused solely by an extraordinary rainstorm of such unusual violence as to fall within the legal definition of an act of God. Plaintiff recovered judgment in the circuit court and the cause is before us on the appeal of defendant.
The damages claimed by plaintiff consisted of the fatal injury of his horse and the loss of certain articles of inanimate personal property caused by the sudden inundation of the property he occupied as a residence. The rear end of the lot was submerged to a depth of twelve or fourteen feet, the barn thereon was swept away and the property in question, being in the barn, was destroyed with it.
The residence of plaintiff was known as 2514 Campbell street and was on the west side of that street. The lot is 130 feet south of the intersection of Campbell and Twenty-fifth streets, runs west to an alley, being 160 feet in length, and is much lower at the rear end on which the barn was situated. At the time of the injury Campbell street, which runs north and south, was neither graded nor paved. From its intersection with Twenty-sixth street north, to a point about two-fifths of the distance to Twenty-fifth street, it ran down hill from an elevation of nearly 200 feet to one of 172-173 feet, thence up-grade to an elevation of 182-183 feet at Twenty-fifth street.
It will be noted from these topographical features that there was a low area or, as the witnesses speak of it, "a draw," in the block between Twenty-fifth and Twenty-sixth streets. The lowest part of this depression extended from the west line of Campbell street at the place of its lowest elevation in a northwesterly course to the alley and covered the rear end of plaintiff's lot. In 1901 the city constructed a sewer system in that vicinity according to a general plan. One of the lateral sewers, of vitrified clay pipe twenty-four inches in diameter, diverged from the main sewer at a point on Twenty-fifth street west of the alley we have referred to, ran east to Campbell street, thence south along the middle of that street to Twenty-sixth street and thence east. From Twenty-sixth to Twenty-fifth street, this sewer had a fall of eight or ten feet and crossing the swale was laid on a wall of masonry 190 feet in length. At the lowest place in the street this wall was five or six feet high. There were catch basins at the alley, the corner of Twenty-fifth and Campbell streets and the corner of Twenty-sixth street.
The negligence charged in the petition is "that defendant city wholly neglected to keep said sewer, openings and catch basins, described as aforesaid, in proper repair; but carelessly and negligently permitted the said sewer, openings and catch basins to become cracked, displaced, dammed up, choked and obstructed as aforesaid; that said defendant city knew, or by the exercise of ordinary and reasonable care could have known, the defective condition of said sewer and openings and catch basins, as aforesaid, in time, by the exercise of ordinary and reasonable care, to have made, or caused to be made, the necessary repairs to said sewer, openings and catch basins, and remove, or cause to have removed, the obstructions, therein, as aforesaid, before the happening of the damage herein complained of, but which it negligently failed to do."
The evidence of plaintiff tends to show that there were cracks in the masonry wall, and that at places the sewer pipe was exposed and had cracks in it and some large holes on or near the top. These defects had existed a long time, and the tenants of the houses on the west side of Campbell street had complained to the owner who repeatedly, at monthly intervals, had complained to the city officers in charge of such matters who on every occasion promised to repair the sewer. The principal ground of complaint was the obnoxious odors that emanated from the cracks and holes. There had been some severe rainstorms while the sewer was in this defective condition but it had carried off the surplus waters and the depression had not been flooded.
June 8 1910, a rainstorm of great severity began shortly after noon. The violent precipitation was not of long duration but while at its height .54 of an inch of water fell in five minutes,...
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