Huggins v. City of Hannibal

• Citation: 12 S.W.2d 504
• Decision Date: 09 January 1929
• Docket Number: No. 20359.,20359.
• Parties: HUGGINS v. CITY OF HANNIBAL.
• Court: Missouri Court of Appeals

12 S.W.2d 504

HUGGINS v. CITY OF HANNIBAL.

No. 20359.

St. Louis Court of Appeals. Missouri.

January 9, 1929.

Rehearing Denied January 22, 1929.

Appeal from Circuit Court, Ralls County; Charles T. Hays, Judge.

"Not to be officially published."

Action by Josephine Huggins against the City of Hannibal. From a judgment for plaintiff, defendant appeals. Affirmed.

John G. Cable, of Hannibal, and Joseph F. Barry, of New London, for appellant.

Rendlen & White, of Hannibal, and E. L. Alford, of Perry, for respondent.

BECKER, J.

Plaintiff obtained judgment in the sum of $2,500 against the city of Hannibal for personal injuries alleged to have been sustained by her through the negligence of said defendant in maintaining a defective and dangerous flagstone crosswalk within the corporate limits of defendant. The defendant in due course appeals.

This is a second appeal. We reversed the judgment, and remanded the cause on the former appeal, for prejudicial remarks of counsel for defendant during the course of his argument of the case to the jury. Inasmuch as the pleadings are the same, and the evidence in the present record, in all material respects, like that of the case on its first appeal, we refer those interested in a complete statement of the facts to the former case. See 280 S. W. 74.

The first assignment of error is that there is a variance between the pleadings and the proof in the case. The point is without merit.

Plaintiff's action is based upon an alleged defective and dangerous condition of a cross-walk made of flagstones, crossing north and south over Lyon street at its intersection with Eleventh street, in the city of Hannibal. Plaintiff's petition alleges that the flagstone walk "was uneven of surface and the stones thereof did not fit together properly, leaving rough, irregular joints with deep crevices between, and that the edges of said crevices, formed by said stones where they did not properly meet and join, were irregular and uneven and some higher than others, where the foot of a pedestrian could easily be caught, forming an unsafe, insecure and dangerous footing for persons using said crosswalk. * * * That on the night of September 9, 1922, the plaintiff was going to her home, and while so doing started to cross over the crosswalk over Lyon street at the east side of the intersection of said Lyon street with Eleventh street, and was walking along in a careful and prudent manner, exercising due care on her part, when, and while so doing and due to no fault or negligence on her part, the plaintiff's foot was caught in one of the open, irregular, deep crevices of said crosswalk and she was thrown down with great force and violence upon the street and crosswalk."

It is conceded that the evidence in the case tends to establish the fact that the cross-walk in question was built of large flat slabs of limestone laid end to end across the road-way of the street; that this crosswalk had been in use many years; that its edges had become worn and rounded off; that the space between any two stones varied from two to four inches, and that, when it rained, sand and gravel would be washed from between the stones so that holes three or four inches deep would be left between the stones, and that this condition had prevailed for a long period of time prior to the date on which plaintiff sustained her injuries, with full knowledge on the part of the defendant. Yet appellant here urges that plaintiff's petition alleges that her foot was caught between two rocks of the crosswalk, and that she was thereby thrown to the ground, whereas her own testimony at the trial was to the effect that her foot, when she fell, was loose, not caught, and therefore there is a variance between the petition and the proof.

We note that...