Heether v. City of Huntsville

• Decision Date: 05 November 1906
• Citation: 97 S.W. 239,121 Mo. App. 495
• Parties: HEETHER v. CITY OF HUNTSVILLE.
• Court: Missouri Court of Appeals

97 S.W. 239

121 Mo. App. 495

HEETHER v. CITY OF HUNTSVILLE.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

1. PLEADING — COMPLAINT — OBJECTION TO EVIDENCE.

While the question whether a petition states a cause of action may be raised by objection to the evidence instead of by demurrer, on such an objection the pleading will be more favorably construed than in case of a demurrer.

2. MUNICIPAL CORPORATIONS — INJURIES TO PEDESTRIAN—PLEADING—PETITION.

In an action against a city for injuries to a pedestrian, the petition alleged defendant's duty to maintain proper street crossings, and that in violation of its duty it maintained a crossing constructed of brick set on edge, which was so narrow and convex on its upper surface that when muddy or wet, or coated with snow or ice, it was unsafe and dangerous; that on the day plaintiff fell on the crossing, and for several days prior thereto, the crossing was coated with ice and snow, which rendered the crossing dangerous; that defendant had knowledge of its dangerous condition; and that plaintiff fell while in the exercise of proper care. Held, that the petition stated a cause of action, as against an objection to any evidence being received under the petition.

3. SAME—EVIDENCE—SUFFICIENCY.

Where, in an action against a city for injuries to a pedestrian, the evidence showed that the crossing on which plaintiff fell was made of brick, about 3 feet wide and from 1½ to 3 inches higher in the center than at either edge, and that, so shaped, it was a dangerous construction when covered with snow or ice, and that plaintiff, when walking over the crossing, fell on account of the snow and ice making the uneven construction slippery and dangerous, the evidence was sufficient to sustain a verdict in favor of plaintiff.

4. SAME—CONTRIBUTORY NEGLIGENCE.

A pedestrian who slipped and fell on an icy cross-walk was not guilty of contributory negligence, as matter of law, for failing to use rubber overshoes.

5. APPEAL — RECORD — NECESSITY OF EXCEPTIONS—ADMISSION OF EVIDENCE.

The admission of evidence will not be reviewed if an objection was made thereto, but the record does not show any exception to the ruling of the court.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by Sophia Heether against the city of Huntsville. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. R. Hammett, J. H. Whitecotton, and Fred Lamb, for appellant. Will A. Rothwell, for respondent.

ELLISON, J.

The plaintiff was injured by falling on one of defendant's street crossings. She brought this action for resulting damage to her, and recovered judgment in the trial court.

The defense attacked the sufficiency of the petition as to its stating a cause of action by objections to any testimony being received. A demurrer is the more direct course for such cause, and while the courts permit the point to be raised by way of objections to evidence, they are inclined to make more allowances in favor of a cause of action being alleged than if a demurrer had been offered before the trial opened. Duerst v. Stamping Co., 163 Mo. 620, 621, 63 S. W. 827. We have examined the petition, and find that it clearly stated a cause of action. It alleges defendant's duty to maintain proper street crossings, and that in violation of its duty it maintained a crossing over one of its streets so constructed and shaped that when wet or covered with sleet, snow, or ice it was dangerous for use by pedestrians; that it was constructed of vitrified brick, set on edge, and was so narrow in...