Lampe v. Kansas City

• Citation: 49 S.W.2d 627
• Decision Date: 02 May 1932
• Docket Number: No. 17378.,17378.
• Parties: LAMPE v. KANSAS CITY.
• Court: Court of Appeal of Missouri (US)

49 S.W.2d 627

LAMPE v. KANSAS CITY.

No. 17378.

Kansas City Court of Appeals. Missouri.

May 2, 1932.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

"Not to be officially published."

Action by Mary H. Lampe against Kansas City. Judgment for plaintiff, and defendant appeals.

Affirmed.

George Kingsley, City Counselor, and James R. Sullivan and Arthur R. Wolfe, Asst. City Counselors, all of Kansas City, for appellant.

W. W. McCanles and B. L. Clardy, both of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, a lady somewhere near sixty years of age, was walking along the sidewalk on the east side of Wyandotte street between Fourteenth and Fifteenth streets in Kansas City, on April 30, 1928, between 12 and 1 o'clock in the afternoon. A business company had, in 1923, for the purpose of constructing a driveway 20 feet wide across the sidewalk into its abutting property so as to afford a vehicular entrance thereto, removed the brick composing the sidewalk at the place of said driveway, and excavated the ground of said driveway to such a depth that, when a sidewalk of concrete was put in place of the brick and earth removed, the top surface of the concrete portion of the replaced sidewalk was 9 inches lower than the surface of the brick sidewalk through which the driveway had been constructed. The joinder of the concrete sidewalk to the brick sidewalk at each side of the driveway (being the north and south ends of the replaced concrete sidewalk) was made at each place by slanting the concrete up to the level of the brick sidewalk, so that at the south end there was a fall or slant of 9 inches in a distance of 3 1/3 feet. The top of the concrete was somewhat white in color and was so smooth as to be glossy.

When plaintiff reached this driveway across the sidewalk, her feet suddenly slipped from under her, and she fell, receiving a permanent injury to her right arm and shoulder. The motion of her arm is very much restricted, and the capsular ligament around the right shoulder joint appears to have been loosened and stretched, possibly broken, so that the bone in the joint does not have the proper adjustment in the socket. She is unable to raise her right arm so as to comb her hair, or to reach back so as to button her clothes.

She brought this action against the city to recover damages and obtained a unanimous verdict of $3,000. The trial court enforced a remittitur of $1,000, and, when this was filed, the motion for new trial was overruled, and judgment rendered for plaintiff in the sum of $2,000. The defendant city has appealed.

It is contended by defendant that its demurrer to the evidence should have been sustained for two reasons: First, because plaintiff's allegations and proof did not disclose that there was an actionable defect in the sidewalk; and, second, that her evidence did not show or prove that the incline from the brick to the concrete sidewalk at the driveway caused her to fall, and failed to show that her slip and fall was caused by any negligence of the city.

Photographs, taken immediately after her fall and showing clearly the driveway 20 feet wide across the sidewalk and the conditions above described, were offered in evidence; and the record contains ample evidence in plaintiff's favor to show, not only that there was the incline in the sidewalk from the brick to the concrete, but that the sidewalk and driveway had received much usage by pedestrians and by children skating thereon, and the surface of the sudden decline in the sidewalk was "slick," smooth, and glossy, particularly so at the southernmost part of the slope at the south end of the replaced sidewalk, some of the evidence being that it was as "slick as glass." She testified that when she reached the top of the slope her feet slipped out from under her and she fell; that it was slick at the point where she fell. The photographs introduced at the trial, and by agreement filed with this court at the argument, show that the decline from the level of the brick sidewalk down to the level of the concrete sidewalk had a top dressing thereon making the sidewalk on such decline very smooth, and therefore it would appear to be "slick." Even the photographs, especially those looking across the sidewalk at the place of the driveway, reveal a very decided slant from the brick sidewalk to the bottom of the concrete driveway. There was evidence that the slickest part of the decline was "right where it started to drop off the sidewalk."

We think that, under all the evidence before us, including the photographs, we would be wholly without warrant or authority to say, as a matter of law and in the face of the jury's verdict, that the change in the character, slant, and constitution of the sidewalk at the place where plaintiff fell did not create an actionable defect. And this is rendered more certainly true when we consider the fact, as shown by the evidence, that this slope in the surface of the sidewalk is not only a slope as compared with the different surfaces of the brick and concrete, but also is itself located on a slope on which the entire sidewalk is located. In other words, the sudden and unexpected slope in the sidewalk is itself on a slope caused by the contour of the ground on which the whole sidewalk is located. The place was such that a jury could well say the sidewalk at that point was unsafe and dangerous. It is true it is held that a city is not liable for a mere slope made necessary by the lay or contour of the ground on which the sidewalk is constructed. But that is not this case. Here there was a sudden slant or decline in the surface of a sidewalk in a stretch of sidewalk that was itself a decline, and, in addition to that, the place of the decline in the sidewalk was originally much smoother than the brick sidewalk, and had since, through use, become still more smooth or "slick" as the witnesses term it. Of course, defendant's evidence does not make it as bad as do plaintiff's witnesses, but it is well settled that we must accept the evidence favorable to plaintiff, since the jury found for her, thereby indicating that they accepted the evidence in her favor. The case clearly comes within the circumstances of such cases as Berry v. City of Sedalia, 201 Mo. App. 436, 439, 212 S. W. 34; Cromarty v. City of Boston, 127 Mass. 329, 34 Am. Rep. 381; O'Brien v. City of St. Paul, 116 Minn. 249, 133 N. W. 981, Ann. Cas. 1913A, 668; Lyon v. City of Logansport, 9 Ind. App. 21, 35 N. E. 128; Price v. City of Maryville, 174 Mo. App. 698, 702, 161 S. W. 295; Moore v. Monarch Gasoline & Oil Co., 225 Mo. App. 115, 35 S.W.(2d) 669, 670; Stewart v. Sheidley, 223 Mo. App. 554, 16 S.W.(2d) 607, 609.

The contention that there is no evidence tending to show plaintiff's fall was caused by the negligence of the city in permitting such a dangerous defect to be and remain in the sidewalk, nor evidence to show that the defect caused her to slip and fall, is likewise without merit. A man following her a short distance away saw her fall, and although he did not notice her until she was falling or had fallen, and did not specify the precise point at which she fell, plaintiff did point out the place on the photograph and characterized it as being at the "slickest" place and at or near...