Livingston v. City of St. Joseph

• Decision Date: 17 November 1913
• Parties: LIVINGSTON v. CITY OF ST. JOSEPH et al.
• Court: Missouri Court of Appeals

161 S.W. 304

174 Mo. A. 636

LIVINGSTON v. CITY OF ST. JOSEPH et al.

Kansas City Court of Appeals. Missouri.

November 17, 1913.

Rehearing Denied December 12, 1913.

1. MUNICIPAL CORPORATIONS (§ 772)—SIDEWALKS —INJURIES—DEFENSES.

Where a city allowed a hydrant to leak so that the water ran over the sidewalk and formed slush with newly fallen snow, which froze unevenly and caused plaintiff to fall, it cannot escape liability on the ground that the snow was a condition caused by the elements existing over a large territory, the injury being caused by the leak of the water.

2. APPEAL AND ERROR (§ 882)—INVITED ERROR —INSTRUCTIONS.

Where defendant in its own requested charge used the same language as in an instruction given for plaintiff, it cannot complain of errors in such language.

3. MUNICIPAL CORPORATIONS (§ 821)—SIDEWALKS —INJURIES—ACTIONS.

In an action against a city for injuries suffered by a fall upon uneven ice on the sidewalk, the question of the city's negligence in permitting water to run onto the sidewalk from a hydrant forming slush with the snow held for the jury.

4. TRIAL (§ 139)—QUESTIONS FOR JURY.

In an action against several defendants, where the evidence wholly failed to show the liability of some of them, their demurrer to the evidence should be sustained.

Appeal from Circuit Court, Buchanan County; C. H. Mayer, Judge.

Action by Emma Livingston against the City of St. Joseph and one James and wife. From a judgment for plaintiff, defendants appeal. Affirmed as to the city and reversed as to James and wife.

Frank B. Fulkerson, L. E. Thompson, and Herman Hess, all of St. Joseph, for appellants. Gabbert & Mitchell, of St. Joseph, for respondent.

ELLISON, J.

Plaintiff received personal injury by falling on one of the sidewalks in St. Joseph, in front of property owned by that city's codefendants, James and wife. She obtained judgment against all the defendants, and they appeal.

The evidence tended to show that plaintiff fell on the sidewalk on Faraon street between Twelfth and Thirteenth at about noon, on the 3d of January, 1912, and that her fall was caused by ice formed from a combination of water and snow, the water coming from a hydrant on the premises occupied by James and wife. Four or five days preceding her fall, a three-inch snow had fallen, and on the morning of the day she fell one inch more was added. The water escaping from the hydrant ran off the adjoining premises onto the sidewalk, making a slush at that place and the weather being cold it froze unevenly; some spots being from two to four inches higher than others. The evidence tended to show it was one...