Hestand v. Hamlin

• Decision Date: 26 May 1924
• Docket Number: No. 14884.,14884.
• Parties: HESTAND v. HAMLIN et al.
• Court: Missouri Court of Appeals

262 S.W. 396

218 Mo. App. 122

HESTAND v. HAMLIN et al.

No. 14884.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by John W. Hestand against B. Hamlin and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. B. Gallagher and Embry & Embry, all of California, Mo., for appellants.

D. W. Peters, of Jefferson City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries. Plaintiff, a blind man, lived in the city of California, Mo., where he was engaged in the restaurant business.

The city of California, a city of the fourth class, has two thoroughfares running north and south, known as Oak and High streets, the latter being one block east of the former, and on each side of said streets are concrete sidewalks, four feet in width, for the use of pedestrians. Near the station of the Missouri Pacific Railroad in said city is a cross street called Smith, which runs east and west and intersects Oak and High streets at right angles. Smith street also has concrete sidewalks on each side, so that pedestrians going north from that street may use either Oak or High street.

Plaintiff's place of business was on the north side of Smith street, nearer Oak than High street, and it was his custom to go eastward from his place of business to High street, thence north on the west sidewalk thereof to the post office and the places of business where he usually purchased his supplies. One block north of Smith street, and running parallel thereto, is Howard street, which also intersects both Oak and High streets at right angles. The sidewalk from Smith street crosses Howard street, the crossing being the same width as the sidewalk, and in the same manner extends north on the west side of High street to the city proper.

At the time of the injury a church edifice was under construction at the corner of Howard and Oak streets and on the north side of the former. Defendant Hamlin was engaged in making a sewer connection for said church building with the main sewer manhole located at or near the center of the intersection of Howard and High streets, for which it was necessary to dig a small ditch in Howard street eastward from the church. In order to lay the sewer pipe it was necessary to project the ditch under the fourfoot crossing above referred to. The said ditch was from two and one-half to four feet in depth and about two feet wide, though the witnesses differed somewhat en this point. "

On the day preceding the injury plaintiff went north over the crossing to the business portion of the city. On reaching the crossing over Howard street, and hearing the noise of men digging on the east side of the crossing toward the manhole, plaintiff stopped, inquired what was being done, and was told of the purpose of the digging. On the morning of the day of the injury plaintiff, unattended and using his cane to feel his way along, passed over the crossing where the work was being done, went to the post office and other points located north, and returned over the crossing in safety. Again on the morning of said day plaintiff started north on a second trip, at which time the ditch was open on each side of the crossing, and was near the said crossing on the west side thereof. Plaintiff again talked to the men employed at digging the ditch, and again was told that they were digging a sewer ditch, and on this occasion plaintiff crossed in safety both going and coming. About noon of said day plaintiff again north over the same route, and in passing over the ditch, or immediately after he had crossed over, he lost his balance, fell into the ditch on the west side of the crossing and was injured. Upon being assisted from the ditch he went on north to the office of a physician, who put some adhesive strips on the muscles of his side, alleged to have been injured. Plaintiff testified that the physician administered some medicine to him afterwards, and that it required about seven months for his hand which was bruised and lacerated to heal. This physician, who was plaintiff's witness, testified that after placing the strips of adhesive plaster upon plaintiff's side he gave plaintiff medicine for rheumatism or other similar ailment.

The charge of negligence in the petition is "that said sidewalk, at the point where the said deep and wide excavation passed under it at said intersection of High and Howard streets in defendant city, was left unguarded by the defendants and each of them, and was dangerous to pedestrians traveling along and on said sidewalk and street at said intersection; that said sidewalk had been and remained unguarded for a long time prior to the said 22d day of June, 1921, which defendants and each of them knew of, or might have known of, by the exercise of ordinary care and caution; but that the said defendants and each of them, their servants, agents, and employes, negligently and carelessly permitted the same to remain in said dangerous condition to the traveling public; * * * that by reason of the carelessness and negligence of said defendants, and each of them, in leaving said sidewalk in said and unguarded condition as afore-said, and as a direct result thereof, plaintiff was injured on the head, arms, and limbs, and sustained a severe strain of his spine, and has suffered great bodily pain from the shock inflicted by said fall into said wide and deep excavation, and has been permanently injured by reason thereof, and has lost time from his business, and has been compelled to pay out large sums of money in an effort to get himself cured, to his damage in the sum of $2,500, for which defendants and each of them by their gross carelessness and negligence are liable."

The defendants each filed answer, making general denial, and for further answer each charges that plaintiff, at divers times prior to his alleged injury, passed along and over said crossing, and well knew the condition thereof; that at the point mentioned in the petition the said crossing was four feet in width and in good and safe condition; that it afforded a safe thoroughfare for pedestrians, and at the time of the alleged injury was in constant use. Each answer contained a plea of contributory negligence in that plaintiff was blind and unattended, and had been warned of said excavation; that the crossing and sidewalk where the alleged instarted jury occurred was in construction and dimensions of the uniform plan adopted by the defendant city. The reply was a general denial. A change of venue asked by plaintiff was granted by the court, and the cause was tried in ...