Johnston v. Kansas City
| Decision Date | 12 June 1922 |
| Docket Number | No. 14380.,14380. |
| Citation | 211 Mo. App. 262,243 S.W. 265 |
| Parties | JOHNSTON v. KANSAS CITY et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.
Action by Dorothy Johnston against Kansas City, the, Kansas City Gas Company, and the Kansas City Railways Company. From a judgment for plaintiff and for defendant Railways Company, defendants Gas Company and City appeal. Affirmed.
E. M. Herber and:Francis M. Hayward, both of Kansas City, for appellant Kansas City.
Charles M. Miller, of Kansas City (J. W. Dana, of Kansas City, of counsel), for appellant Kansas City Gas Co..
Rogers & Yates, of Kansas City, for respondent.
This is a suit in damages for personal injuries. Plaintiff is a resident of Kansas City, Mo. Defendant Kansas City is a municipal corporation of Jackson County, Mo., and defendant Kansas City Gas Company is a corporation organized and existing under the law, as is also the defendant Kansas City Railways Company.
On February 26. 1919, defendant Kansas City Gas Company made the following application to defendant city for permission to excavate in Seventh street in said city:
Pursuant to this application a permit was granted and a line of excavations was made between Grand avenue and Walnut street, about 8 inches north of the north rail of the street car track that extends east and west along said section of Seventh street, and about 13 feet south of the north curb. Seventh street at this point is about 30 feet in width from curb to curb. The distance from Grand avenue to Walnut street is 254.8 feet. As parts of this excavation there were 46 holes dug, of varying lengths, each about 2 feet wide and 2½ to 3 feet in depth. For the purpose of making these excavations, the surface of the pavement was cut in a direct line from east to west. After making the repairs to its main, the gas company refilled said holes.
A city ordinance (section 583) provides that after an excavation is made it shall be filled by the party making the same, "with earth or sand properly flushed or tamped," and that an inspector or representative of the city shall be notified four hours before commencing to refill the excavation. The defendant gas company refilled the excavations by replacing the dirt that had been taken therefrom. Seventh street between Grand avenue and Walnut street is heavily traveled, and the passing of vehicles over the street soon packed the dirt down into the refilled parts of the excavation, thus causing depressions irregular in depth.
On the night of April 3, 1919, plaintiff, in company with her sister and another woman,. boarded a Brooklyn avenue car near their home with the intention of attending a performance at the Grand Theater, at the southwest corner of Seventh and Walnut streets. The Brooklyn car line at that time came north on Grand avenue to Seventh street, and there turned west into the space between Grand avenue and Walnut streets, which was its terminus. There plaintiff and her companions alighted. Plaintiff was the first to leave the car, and the step by which she made her exit was immediately over one of the depressions caused as aforesaid. In stepping from the car her right foot encountered the depression, and her ankle turned, causing a fracture of the tibia at the ankle, and the ligaments of the right ankle were sprained and torn. The result, as shown by the testimony, is that there is a slight deformity in said ankle, and a permanent limp in plaintiff's walk.
The petition charges negligence as follows:
"That pursuant to said permission said defendant Kansas City Gas Company excavated in said street; that thereafter, and prior to said 3d day of April, 1919, said defendant Kansas City Gas Company, through its agents, servants, and employees, attempted to fill up said excavation, but negligently and carelessly failed to properly do so, leaving a large number of deep holes in said street, thereby causing said Seventh street to be unsafe and dangerous; that said holes extended along and immediately adjoining said street car track and had been there a long time prior to said 3d day of April, 1919, and said unsafe condition was known to said defendant Kansas City long prior to and at the time of plaintiff's injuries, and said defendant Kansas City Railways Company then and there knew, or by the exercise of ordinary care and caution should have known, said street was a dangerous and unsafe place to discharge passengers from its street cars; * * * that said defendant Kansas City Railways Company, through its agents, servants, and employees, carelessly and negligently stopped said street car so that the exit to said car was directly and immediately adjacent and opposite one of said dangerous holes, and the plaintiff, not knowing of the dangerous condition of said street, stepped from" said car directly into one of said holes in the street, thereby seriously and permanently injuring her as herein set out."
The separate answer of defendant city is a general denial and a plea of contributory negligence. The separate first amended answer of the gas company is a general denial, a plea of contributory negligence, and, as further answer:
"This defendant states that, if it made said excavation or hole in the street as alleged in the petition, it properly at the time of the making of the same refilled the same, and left the same in proper condition, and without any bole or depression being left, and that, under regulation with defendant Kansas City, it was not required or allowed to do more than was done by this defendant, and that the responsibility thereafter was solely with defendant Kansas City to keep and maintain said alleged hole or excavation in a reasonably safe condition, and to repair and resurface with asphalt the top thereof if required."
The separate answer of defendant railways company is a general denial. Plaintiff's reply to all of said answers was in the nature of a general denial. Demurrers offered by each of the defendants at the close of plaintiff's case and again at the close of all the evidence were refused. The cause was tried to a jury, and the verdict was for plaintiff and against defendants Kansas City Gas Company and Kansas City in the sum of $2,500, and in favor of defendant railways company. Defendants gas company and the city appeal.
Defendant city, under its points and authorities, urges:
(1) The court erred in not giving the instruction in the nature of a demurrer asked at the conclusion of plaintiff's evidence and again at the close of all the evidence in the case.
(2) That there was error in the refusal of the court to give instruction No. 4, as asked by defendant city.
In support of its first point defendant cites section 8904, Rev. Stat. Mo. 1919 (Session Laws 1913, p. 545), which specifies that no action shall be maintained against a city of 100,000 inhabitants on account of any injury growing out of any defect in the condition of any bridge,. boulevard, street, sidewalk, or thoroughfare in said city until notice shall first have been given in writing to the mayor of said city within 90 days of the occurrence for which damage is claimed "stating the place where, the time when, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from the city." The only notice relied upon by plaintiff is the petition itself, and this defendant urges this was insufficient notice, for the reason that, having alleged that there had been left "a large number of deep holes in said street," and that plaintiff "stepped directly into one of said holes in said street, thereby receiving injuries," it does not appear in such notice into which one of so many existing holes plaintiff stepped. The testimony showed there were some 46 such holes within the street between Grand avenue and Walnut street, some of which were of considerable depth and others very shallow. From these circumstances counsel argue the city had no information enabling it to make measurements as to the depth or to know the safe or unsafe condition of the particular hole into which Plaintiff stepped, or claims to have stepped.
This court frequently has been called upon to determine the sufficiency of notice under this statute. In Snickles v. St. Joseph, 139 Mo. App. 187, 122 S. W. 1122, it is held that the allegations of the petition are sufficient to give the city the statutory notice of the time, place, and circumstances of the injury. The prime object of the statute requiring the giving of notice in such cases is to protect the city against fraudulent or stale demands. The statute should be construed reasonably. If the officers of the city with the information contained in the petition could not be misled, but could readily go to the place and locate the negligent defect which caused the injury, then it is sufficient. At page 192, of 139 Mo. App., at page 1124 of 122 S. W., the court said:
"A claimant will not be permitted to thwart the intent of the statute by untruthfulness or indefiniteness when the true facts may be clearly stated. * * * it would be...
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