Hinton v. City of St. Joseph

• Decision Date: 03 May 1926
• Docket Number: No. 15640.,15640.
• Parties: HINTON v. CITY OF ST. JOSEPH
• Court: Missouri Court of Appeals

282 S.W. 1056

HINTON v. CITY OF ST. JOSEPH

No. 15640.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Appeal from Circuit Court, Buchanan County; L. A. Varies, Judge.

"Not to be officially published."

Action by Amy Hinton against the City of St. Joseph. From judgment setting aside a nonsuit, defendant appeals. Affirmed.

Gabbert, Gaddy & Sherwood, and Harry Dischner, all of St. Joseph, for appellant.

Sherman, Stigall & Kranitz, of St. Joseph, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. At the close of plaintiff's case the defendant interposed a special demurrer, which the court sustained. Plaintiff took an involuntary nonsuit, with leave to set the same aside. The nonsuit was afterwards set aside by the court, and defendant has appealed.

The facts show that about 4 p. m. of September 13, 1924, plaintiff, while walking southward on the east side of Tenth street in St. Joseph, Mo., tripped over a lid of a sewer box or sewer inlet, resulting in her receiving certain injuries. Tenth street runs north and south, and Seneca street, an intersecting street, east and west. There is a sidewalk on both streets. The edge of this lid had been raised four or five inches above the surface of the sidewalk. The inlet was located at the outer edge of the junction of the sidewalks at the northeast corner of the two streets. The junction of the sidewalks at the corner is rounded. The lid was a part of the top of the inlet, and was about a foot and a half square, and weighed about 50 pounds. The lid had been pushed out of place and in a backward direction the day before by the hub of a wheel of a truck which rounded the corner too near the curbing. The sidewalk on Tenth street at the place in question was not as wide as the average sidewalk in the city, but was only five and one-half to six feet in width. Plaintiff had come from the north on the east sidewalk of Tenth street, and had passed across Seneca street, and had taken her second step when she came in contact with the upraised lid of the sewer.:n going upon the sidewalk at the south side of Seneca street, she moved to the outside of the sidewalk, for the reason that two young men were coming south on the inside. She stepped to the outer edge of the sidewalk in order to permit them to pass.

Upon cross-examination, plaintiff testified that she could have seen the lid when she was crossing the street, "if I had paid attention"; that there was nothing to obstruct her view of the lid, "if I had been looking down"; that she supposed she could have seen it as far away as across the street, but that she did not "look at it" before she fell. She testified that she did not know how long it had been since she passed the place where she was injured; that "I hadn't been up that street for quite a little while." There is no evidence that the lid was out of place at any time that she was there before, or that she knew of this defective condition of the sewer box.

On redirect examination plaintiff testified that she was "just walking down the street, not looking right straight down to see every step." "I was paying attention as much as any one would." On motion of defendant the court struck the words "as much as any one would." She further testified that she was not looking "right straight down, or I could have seen it"; that she was "walking along, not looking straight down, but looking down on the street." When asked if her attention was drawn to anything aside from her walking, she stated, "No, sir; I noticed the two young men coming down the street; stepped to one side"; that she was "just walking along noticing up and down the street; kind of glanced over toward the garage," which was situated at the northeast corner of the two streets. The two young men were coming down the street next to the garage. She further testified: That she was "not paying any special attention" to the sidewalk. That nothing attracted her attention as she passed the sewer inlet. "I really was not looking down, walking along; just glanced at some people going up the street. There were others coming up the street." "Q. Did you have to move out of the way for them? A. Yes, sir; they were on the inside. I just took the outside. They were next to the garage. Q. As you stepped up did you take notice where the curbing was when you stepped up on the walk? A. No; not any more than to notice there was a curb there and I stepped up on it." She testified that she was "going along slowly." On recross-examination she testified that she could have seen the lid as she crossed the street without looking down, "if I had been watching for it or anything like that"; that the young men did not crowd her to the side of the street; and that it was "a nice bright day."

It was shown by another witness that the lid did not fit properly and rocked when one stepped on it, and that it was difficult to get it back when out of place. That automobiles would displace it. "Q. How would the car hit it? A. Coming around this corner the hub would generally...