Lundahl v. Kansas City

• Citation: 209 S.W. 564
• Decision Date: 17 February 1919
• Docket Number: No. 13101.,13101.
• Parties: LUNDAHL v. KANSAS CITY.
• Court: Court of Appeal of Missouri (US)

209 S.W. 564

LUNDAHL v. KANSAS CITY.

No. 13101.

Kansas City Court of Appeals. Missouri.

February 17, 1919.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by R. L. Lundahl against Kansas City. From judgment for plaintiff, defendant appeals. Affirmed conditionally on remittitur of $500 of the verdict, otherwise reversed and cause remanded.

E. M. Harber and Francis M. Hayward, both of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City for respondent.

ELLISON, P. J.

Plaintiff suffered severe injury by falling over an obstruction in one of defendant's sidewalks. He recovered judgment in the circuit court.

It appears that plaintiff was in the service of a residence neighborhood in Kansas City as a night watchman, and that while observing and following a suspicious character, at about 4 o'clock a. m. September 18, 1916, he stumbled and fell on a granitoid sidewalk on Thirty-Eighth street. The walk was laid in connected blocks about six feet square, and the obstruction, or defect therein, consisted in one block having sunk down (at the lowest place) between two and three inches below the next block with which it had been connected on a level. As plaintiff's duties only called him over the neighborhood in the nighttime, he had not observed the defective walk. His injuries were severe.

Defendant presented a demurrer to the evidence, and insists that it should have been sustained on the ground that a defect in a sidewalk of the character described is not such as can be reasonably avoided, and for the existence of which a city is not liable. Cases are cited sustaining that view: Purcell v. Riebe, 227 Pa. 503, 76 Atl. 212; Gastel v. City of New York, 194 N. Y. 15, 86 N. E. 833, 128 Am. St. Rep. 540, 16 Ann. Cas. 635; Baker v. City of Detroit, 166 Mich. 597, 132 N. W. 462.

On the other hand, plaintiff contends that whether such defect is a character of negligence which will create liability to the suffering pedestrian, who is himself without fault, is a question of fact for the judgment of a jury. He cites a number of cases, especially from this state, which support him: Willis v. St. Joseph, 184 Mo. App. 428 171 S. W. 27; Price v. Maryville, 174 Mo. App. 698, 161 S. W. 295. We feel constrained to adopt that view. We are inclined to this from the difficulty a court would have in saying, as a matter of law, that an unnecessary obstruction such as described was not a negligent obstruction. It is not practical, of course, to maintain a walk exactly level, or wholly free from obstruction, especially where the topography, or the immediate surroundings, are such as to make it impracticable. The obstruction may be so great or so slight as that it could be declared to be, or not to be, negligence, as a matter of law. That in the present case is along the border line, and we think it should be left to a jury.

Plaintiff introduced evidence tending to show that he was a carpenter by trade, though he had not been so engaged for nearly twelve years, and what one could at present time earn at that trade. When plaintiff was...