Hays v. City of Columbia

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

141 S.W. 3

159 Mo.App. 431

HARRIET M. HAYS, Respondent, v. CITY OF COLUMBIA, Appellant

Court of Appeals of Missouri, Kansas City

November 20, 1911

Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.

REVERSED.

Judgment reversed.

W. H Rothwell and E. W. Hinton for appellant.

The construction of wooden gutter crossings, held in place by their own weight, was not negligent, because the liability of such crossings to become misplaced, if a defect at all, is one inherent in that sort of crossings, and for such errors of judgment on the part of the governing board in adopting and using them the city is not liable. Urquart v City, 91 N.Y. 67; Augusta v. Littlefield, 115 Ga. 124.

M. J Lilly and Hunter & Chamier for respondent.

OPINION

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 $ 2500 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 four or five feet long, about three and one-half feet wide, and consisted of four two-by-ten 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 had never 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 east side of Ninth street and the north side of Broadway, and in 1906, Broadway had been repaved with brick. The evidence of plaintiff tends to show that the board platform was continued in use after the repaving of the street though the top of the curb then was only fourteen or fifteen inches above the gutter. Ninth street was being repaved at the time of the injury and its roadway for vehicles was closed to travel by means of ropes stretched across the street at street intersections. The barrier at Broadway was at a place to interfere with travel along the north side of that street and to compel pedestrians to make a detour into the roadway to avoid the obstruction. Plaintiff was traveling westward on the sidewalk on the north side of Broadway. When she reached the northeast corner of the intersection at Ninth street, she observed the...