Johnson v. City of St. Joseph

• Decision Date: 01 December 1902
• Citation: 71 S.W. 106,96 Mo. App. 663
• Parties: JOHNSON v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

71 S.W. 106

96 Mo. App. 663

JOHNSON v. CITY OF ST. JOSEPH.

Court of Appeals at Kansas City, Missouri.

December 1, 1902.

STREETS — PLATS — ACCEPTANCE — PERSONAL INJURY — INSTRUCTIONS — DEGREE OF CARE — IMPUTED NEGLIGENCE.

1. In a suit against a city for injuries arising from defects in an alleged street, the proof showed that the place of the accident was designated as a street on plats of land within the city limits; that the city by special ordinance had directed the city water company to extend its water mains and erect hydrants in streets on such plats; that a city officer had issued a permit to a telephone company to open some of such streets; and that the street on which the accident happened had been used as a public highway. Held sufficient to require the submission to the jury of the question of the acceptance of the street by the city.

2. In a suit against a city for injuries arising from a defective street, an instruction that, if plaintiff at the time of the injury was using such care as might reasonably be expected from an ordinarily prudent person at the time and under the circumstances, the jury must find that she was exercising reasonable care, was not erroneous.

3. Contributory negligence of a son driving a vehicle in which his mother was riding will not be imputed to the mother, in the absence of a showing that he was in her employ, so as to defeat a recovery for injuries sustained by her from a defective street.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Jacobine Johnson against the city of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed.

Kendall B. Randolph, for appellant. J. A. Connett and J. F. Woodson, for respondent.

BROADDUS, J.

The plaintiff is a woman who at the time of the injury complained of was about 70 years of age. She alleges that on the night of about the 17th day of August, 1901, while riding in a wagon with two other persons and her son, the latter of whom was driving, and while passing along on Thirty-Second street in defendant city, it was noticed that they were driving among the weeds lining said street; that it was a dark night, and there were no street lamps or lights of any kind in that vicinity; that the son, in attempting to guide the team into the beaten path, unwittingly pulled them the wrong way, so that the wagon and its occupants were precipitated down a perpendicular embankment several feet in height, throwing plaintiff out of said wagon and onto the ground with great force and violence, from which fall she sustained serious and permanent injuries; that said embankment ran lengthwise with said Thirty-Second street and about the center thereof, and was caused by the east side of said street being graded down so that the surface of said east side was five or six feet lower than the surface on the west side.

It was admitted on the trial of the case that on December 1, 1899, the limits of the city were extended so as to take in the place where the injury occurred, including the property on the east side thereof for a width east and west of one block, and extending about one-half mile south to what was known as "Mitchell Avenue."

The following copy of plats of "Mason Place" addition and "Oak Hill" addition will assist in a proper understanding of the case:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It will be seen from said plat that Mitchell avenue is the first street south of Penn street and south of where the injury occurred. It is also shown by said plat that the first street north of the place of accident is Penn street, the second is Seneca street, the third is Lafayette street, and the fourth is Olive street. The west half of said Thirty-Second street from Mitchell avenue north to and beyond Olive street was dedicated in October, 1888, and the other half in April, 1889.

On May 17, 1900, the defendant city, by special ordinance, directed the St. Joseph Water Company to extend its water mains on Twenty-Eighth street from Penn street north to Seneca street, thence east on Seneca to Thirty-Second street, and to erect fire hydrants at each corner of said Seneca street at the intersection of Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, and Thirty-Second streets, respectively. The defendant's city engineer, on September 25, 1900, issued a permit to a telephone company to open Olive street, Thirtieth street, and Thirty-First street for the purpose of setting up telephone poles; and in May, 1900, authorized a plumbing company to open Lafayette street, between Thirty-First and Thirty-Second streets, for the purpose of making water connections for block 9, Oak Hill addition. It was also shown that Thirty-Second street had been used by the public as a public highway. There was no evidence, other than that stated, tending to show that the city assumed jurisdiction and control of said street, and there was no material conflict in the evidence. There was a finding and judgment for the plaintiff, from which the defendant city appealed.

At the close of plaintiff's case the defendant submitted a demurrer to the evidence,...