Hays v. City of Columbia

• Decision Date: 20 November 1911
• Citation: 159 Mo. App. 431,141 S.W. 3
• Parties: HAYS v. CITY OF COLUMBIA.
• Court: Missouri Court of Appeals

141 S.W. 3

159 Mo. App. 431

HAYS v. CITY OF COLUMBIA.

Kansas City Court of Appeals. Missouri.

November 20, 1911.

1. MUNICIPAL CORPORATIONS (§ 817) — ACTIONS FOR INJURIES—BURDEN OF PROOF.

Plaintiff, in an action against a city for personal injuries, who alleges that defendant "negligently and carelessly failed to provide a fastening" by which to prevent the platform over a gutter from slipping to the pavement, thereby rendering it unsafe to the traveling public, has the burden of proving that his injury was caused by defendant's omission to fasten the platform as pleaded, and that such omission was a breach of some ministerial duty owed by defendant to pedestrians using that platform.

2. MUNICIPAL CORPORATIONS (§ 768)—TORTS —GOVERNMENTAL OR MINISTERIAL ACTS— CROSSWALKS.

For injuries resulting from a danger inherent in the plans adopted by a city for certain work it is not liable, but for injuries resulting from the negligent construction of a work according to such plans it is liable; and a city's use for over 15 years of platforms over gutters without fastening them down is a defect inherent in the plans of such platforms, for which it is not liable.

Appeal from Circuit Court, Cole County; W. H. Martin, Judge.

Action by Harriet M. Hays against the city of Columbia. Judgment for plaintiff, and defendant appeals. Reversed.

W. H. Rothwell and E. W. Hinton, for appellant. M. J. Lilly and Hunter & Chamier, for respondent.

JOHNSON, J.

This is a suit for damages for personal injuries plaintiff alleges she sustained in consequence of the negligence of defendant, a municipal corporation, in the construction and maintenance of a way provided for pedestrians on one of the public streets of the city. Plaintiff recovered a judgment for $2,500 in the circuit court, and defendant appealed.

The injury occurred November 6, 1907, at the corner of Ninth and Broadway streets, in Columbia. For some years both streets had been macadamized, and, on account of the elevation of the sidewalks above the gutters, had been provided with gutter crossings which were board platforms of uniform construction throughout the city. Each platform was 4 or 5 feet long, about 3½ feet wide, and consisted of four 2 by 10 boards, held together by cleats to which the boards were nailed. When in place, each platform extended across a gutter at a street crossing in a manner to afford a way for pedestrians over the gutter. One end of the platform was beveled and placed on top of the curb. The other end rested on the macadam across the gutter. These platforms had been in general use all over the city for many years, and we find the evidence shows conclusively that none had been fastened down or provided with any appliance to keep it in position. Consequently it often happened that such platforms would be displaced by wagon wheels striking them or by other causes. Broadway street runs east and west, Ninth street north and south, and there is evidence tending to show that during the period the streets were macadamized a platform of the kind described had been maintained at the northeast corner of the street intersection on the crossing of Broadway for pedestrians traveling along the east side of Ninth street. This platform never had been fastened down, but had been held in place only by its own weight. Some time before the injury granitoid sidewalks had been laid on the...