Kempa v. City of St. Joseph
| Decision Date | 06 April 1914 |
| Citation | 165 S.W. 1176,178 Mo.App. 292 |
| Parties | THOMAS KEMPA, Respondent, v. CITY OF ST. JOSEPH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. H. Mayer, Judge.
AFFIRMED.
Judgment affirmed.
Frank B. Fulkerson, L. E. Thompson and Herman Hess for appellant.
Duvall & Boyd and Mytton & Parkinson for respondent.
--Action for personal injuries plaintiff alleges were caused by the negligent failure of defendant city to maintain a public street in a reasonably safe condition for travel. The answer is a general denial and a detailed plea of contributory negligence. The action is here on the appeal of defendant from a judgment of $ 2250 recovered in the circuit court.
Plaintiff a laborer employed in railroad shops in St. Joseph, lived in the country south of the city and generally drove to and from his work in a single buggy. On the day of the injury he entered the city on Sixteenth street and drove north to its intersection with Seymour street where he was thrown out of the buggy and injured. The locality is in an extreme southern portion of the city where the streets were neither paved nor graded to an established grade, but there is abundant evidence that both streets had been accepted by the city and opened to public travel. There were many residences in the neighborhood, the streets were traveled by many people and the evidence of plaintiff is uncontradicted that for many years defendant, at different times, had done surface grading on both streets to keep them in a reasonably safe condition for travel. In coming north on Sixteenth street plaintiff drove down a long hill, and thence a hundred feet or more on a slight grade to Seymour street which runs east and west and is fifty feet wide. Sixteenth street is forty feet wide and there is a break in its continuity at Seymour street, the northern extension being about 150 feet east of the southern. On reaching Seymour, plaintiff would have gone east on that street to the northern prolongation of Sixteenth and thence across some railroad tracks to Garfield avenue.
The evidence of plaintiff shows that for a long time before the injury the intersection of the two streets had been allowed to remain in a dangerous condition, caused by the presence of a gully washed out by surface water to a width of two or three feet and a depth of more than two feet. The gully started in Sixteenth street at a point about fourteen feet west of the east property line and six feet south of the intersection. It ran northeast into the intersection, thence abruptly west several feet and thence northeast to and across the north line of Seymour street. Plaintiff states he did not know of the jog in the course of the ditch and did not know of the extent of the obstruction. He was giving attention to the horse and the way in front when the right wheels dropped down in the ditch near the south line of the intersection causing the horse to become frightened and unmanageable. The horse ran north and then suddenly turned eastward in a way to cause the right wheels of the buggy to mount a bank and the left wheels to drop into the ditch. Plaintiff was thrown out and sustained severe and painful injuries.
We are asked to reverse the judgment on the ground that plaintiff was guilty of contributory negligence as a matter of law. Defendant pleaded and proved a city ordinance requiring that "vehicles turning to the right into another street or roadway, must turn the corner as near to the curb as possible."
The ordinance must be regarded as a proper police regulation but under the evidence we would not be justified in saying that plaintiff must have violated it, or that if he did, such violation contributed to his injury. The street was in an unsafe condition which compelled him to pick the safest available way, and the position and nature of the ditch are shown to have been such as would lead to the...
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