Little v. Kansas City
| Decision Date | 18 November 1946 |
| Parties | Grace E. Little, Appellee, v. City of Kansas City Missouri, a Municipal Corporation, Appellant |
| Court | Kansas Court of Appeals |
Delivered
Appeal from Jackson County Circuit Court; Hon. James W. Broaddus Judge.
Affirmed.
David M. Proctor, and Henry Arthur for appellant.
(1) The trial court erred in refusing defendant's motion for a directed verdict, both at the close of plaintiff's case and at the close of all the evidence because: The evidence shows that the plaintiff was guilty of contributory negligence as a matter of law, and because the evidence shows that the alleged wrongful act of the defendant Kansas City Missouri, was not the proximate cause of the injuries. (a) Milburn v. K. C., St. J. & C. B. Ry. Co., 86 Mo 104; 45 C. J. 944, 945; O'Neill v. City of St. Louis, 292 Mo. 656, 239 S.W. 94; Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566; Smith v. Kansas City, 184 S.W. 82; Houts, Missouri Pleading and Practice, Vol. 1, Sec. 102, p. 167. (b) Logan v. Wabash R. Co., 96 Mo.App. 461, 70 S.W. 734; Evans v. Wabash R. Co., 12 S.W.2d 767.
Bernard B. Strayer for respondent.
(1) The trial court did not err in refusing defendant's motion for a directed verdict at the close of plaintiff's case and at the close of all the evidence. Lovins v. City of St. Louis et al., 90 S.W.2d 430; Barnes v. Kansas City, 63 S.W.2d 164; Neagle v. City of Edina, 53 S.W.2d 1077; Kirk v. Kansas City, 129 S.W.2d 1058; Johnston v. City of St. Louis, 138 S.W.2d 666; Johnston v. City of St. Louis, 138 S.W.2d 666.
This is an action for damages for personal injuries sustained by plaintiff when she fell upon a defective sidewalk in Kansas City, Missouri. She recovered a judgment below and defendant appealed, contending, first, that its motion for a directed verdict should be sustained because all the evidence discloses that plaintiff was guilty of contributory negligence as a matter of law; and, second, that the evidence shows that the alleged injuries were not the natural and probable consequence of the alleged negligent act of the defendant; that is, the alleged wrongful act of the defendant was not the proximate cause of the injuries.
No point is made concerning the sufficiency of the pleadings, or that proper notice of the accident was not given, or of the amount of the verdict. We will not lengthen the opinion by discussing plaintiff's injuries. There were other defendants named in the petition but the cause was dismissed as to them before trial, and the judgment appealed from is against the City alone.
Plaintiff's evidence is to the effect that on the 4th of April, 1944, at about eleven o'clock, A. M., she was walking in a general easterly direction along and upon the north sidewalk on 47th Street in Kansas City, and that when she reached a certain place directly in front of the entrance of an apartment building known as the Bartleston Apartment at 410 West 47th Street, she caught her foot in a broken part of the sidewalk and fell; she described the sidewalk at this point in this manner:
Mrs. Shore testified that the broken and uneven place had been in the sidewalk for some three or four years before the time in question and that the difference in the elevation of the sidewalk at that point was two or three inches and quite rough, and that she had stumbled over it on several occasions. It is conceded the sidewalk was repaired within a month or two after the plaintiff fell.
Defendant's evidence was to the effect that the cracked and broken place in the sidewalk was minor and trivial in character Several witnesses who frequently passed over the place testified in substance that they had not noticed or observed any dangerous place in the sidewalk or any elevation of as much as three or four inches. Photographs of the place were introduced by plaintiff and defendant. From these it is obvious there is a substantial crack extending entirely across the width of the sidewalk. At the south edge the broken, rough and uneven place seems to be twelve to fourteen inches wide, then narrows until it reaches a point approximately in the middle of the sidewalk where there is a broken, rough and uneven place of six to eight inches in width and then the crack narrows as it approaches the north side of the walk. The photographs also indicate that the east edge of the crack was higher than the west edge, but we cannot determine definitely from the photographs the extent of the elevation. Plaintiff testified that she was walking eastward and caught her toe on the elevation and fell to the sidewalk, causing her injury.
We think the evidence is sufficient to submit the issue of the defendant's negligence in maintaining the sidewalk in the condition described by plaintiff's evidence. However, the City contends that the plaintiff was guilty of contributory negligence as a matter of law. This contention is founded on the theory that plaintiff did not use due care in looking where she was going as she walked along the street. On this point her testimony is to the effect that she did not know of the defective condition until she fell; that the day was clear, the sidewalk dry, and that as she walked along she was looking
The defendant contends that such testimony presents the situation of a pedestrian who did not look where she was going at the time and place of the accident, and therefore she is guilty of contributory negligence as a matter of law.
It cites the case of Milburn v. K. C., St. J. & C. B. Ry Co., 86 Mo. 104. The facts in that case are so different that it is of little help in arriving at a proper conclusion in the present case. There two of plaintiff's cows were killed by defendant's train on a crossing. The plaintiff's own testimony shows that he was standing nearby at the time and if he had made any effort at all he could have driven the cows from the crossing before the train struck them, but made no effort to do so. The case of O'Neill v. City of St. Louis, 292 Mo. 656, 239 S.W. 94, is also cited. But in that case the plaintiff had knowledge of the dangerous condition in the sidewalk and had warned her little boy about it...
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