Lueking v. The City of Sedalia

• Citation: 167 S.W. 1152,180 Mo.App. 203
• Docket Number: 11111.,No. 11111.
• Decision Date: 18 May 1914
• Parties: CAROLINE M. LUEKING, Respondent, v. THE CITY OF SEDALIA, Appellant
• Court: Kansas Court of Appeals

167 S.W. 1152

180 Mo.App. 203

CAROLINE M. LUEKING, Respondent, v. THE CITY OF SEDALIA, Appellant

Court of Appeals of Missouri, Kansas City

May 18, 1914

Appeal from Pettis Circuit Court.--Hon. H. B. Shain, Judge.

AFFIRMED.

Judgment affirmed.

John D Bohling for appellant.

(1) A municipal corporation is not liable for injuries from mere general slipperiness of its crossings, occasioned by recent fall of rain or snow. Reno v. St. Joseph, 169 Mo 642; Warren v. Independence, 153 Mo. 593; Quinlan v. Kansas City, 104 Mo.App. 616; Reedy v. Brewing Ass'n., 161 Mo. 523; Bonkey v. St Louis, 219 Mo. 37. (2) Plaintiff's own evidence shows her to be guilty of such contributory negligence as to preclude her recovery. Border v. City of Sedalia, 161 Mo.App. 333; Wheat v. St. Louis, 179 Mo. 572; Sindlinger v. Kansas City, 126 Mo. 315; Wiggins v. St. Louis, 135 Mo. 565; Cohn v. Kansas City, 108 Mo. 387; Diamond v. Kansas City, 120 Mo.App. 185; Boyd v. City of Springfield, 62 Mo.App. 458; Lowe v. Railroad, 145 Mo.App. 255; Coffey v. City of Carthage, 186 Mo. 585; Craig v. City of Sedalia, 63 Mo. 430; Ryan v. Kansas City, 134 S.W. 566; Ryan v. Kansas City, 232 Mo. 471; Kaiser v. St. Louis, 185 Mo. 366; Woodson v. Met. Street Ry. Co., 224 Mo. 701.

George F. Longan for respondent.

OPINION

JOHNSON, J.

This is an action against the city of Sedalia for personal injuries sustained by plaintiff from falling on a crossing of one of the public streets. Plaintiff charges that her fall was caused by a negligent breach by the city of its duty to exercise reasonable care to maintain the crossing (which was of stepping-stones) in a reasonably safe condition for travel. The petition alleges "that said crosswalk was made of large stepping-stones, set and imbedded in the ground; that prior to said 22d day of February, 1913, the defendant had negligently permitted said stepping-stones to become uneven, worn, smooth and sleek from long and constant use so as to be dangerous and unsafe to step upon, and especially dangerous and unsafe when wet or when snow had accumulated on said stones, and that by reason of the worn condition of said stepping-stones the space between said stones had become so widened as to permit the foot of a person the size of this plaintiff, in a lengthwise position, to pass between the tops of said stones; and that the said defendant had knowingly and negligently permitted said stepping-stones and the said crossing to remain in this unsafe and dangerous condition, notwithstanding the said crossing was at a place much frequented and passed over by people traveling along said thoroughfare, . . . that plaintiff undertook and was crossing on said Washington avenue on said crossing at said place and while using all proper care and caution she stepped upon one of the said defective, smooth, worn, rounded and sleek stones, so as aforesaid described, said stones being at the time wet on account of a light snow being on the same when, by reason of the rounded, worn and sleek condition of said defective stone, plaintiff's foot slipped off of the said stone and into the crevice or opening between the said stone and the stone immediately east thereof, in such a way as to wedge and fasten the foot of plaintiff between the two said stones and in such a way as to cause plaintiff to fall violently to the ground, thereby fracturing both the tibia and fibula bones at the lower end of the ankle joint in the left foot and ankle of plaintiff," etc.

The answer denies the allegations of negligence and alleges that the injury of plaintiff was caused by her own lack of care and by the presence on the stones of recently fallen snow. A trial by jury resulted in a verdict and judgment for plaintiff and defendant appealed.

The only questions raised in the brief of defendant relate to the demurrer to the evidence which it is urged should have been given. As to such questions it is our duty to consider the evidence in its aspect most favorable to the pleaded cause of action.

The injury occurred early in the night of February 22, 1913, at the intersection of Thirteenth street and Washington avenue. Plaintiff lived at the southeast corner of these streets and was injured while returning home from a visit to her brother who lived two blocks west on Lamine avenue and just north of Thirteenth street which runs east and west. She crossed Thirteenth street at Lamine avenue and proceeded eastward along the south side of Thirteenth street to the crossing of Washington avenue and her fall occurred when she was in the middle of the crossing. Washington avenue was not paved and the crossing consisted of stepping-stones set with spaces between them. They had been there many years and originally had been flat on top but for, perhaps, three or four years those in the parts of the roadway most used by wagons and other vehicles had fallen into a condition of unsafety to pedestrians owing to the wearing away from contact with wagon wheels which had so rounded the tops of the stones as to render them convex and consequently unsafe for use by pedestrians, especially in wet or snowy weather. In dry weather people who used the crossing, including plaintiff, generally avoided the stones and walked in paths on either side. A light snow which had recently fallen covered the stones and plaintiff states she realized the danger of slipping and falling but concluded that she could cross in safety by exercising care commensurate with the apparent...