Lundy v. City of Sedalia

• Decision Date: 04 March 1912
• Citation: 162 Mo. App. 218,144 S.W. 889
• Parties: LUNDY v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

144 S.W. 889

162 Mo. A. 218

LUNDY v. CITY OF SEDALIA.

Kansas City Court of Appeals. Missouri.

March 4, 1912.

1. MUNICIPAL CORPORATIONS (§ 778)—USE OF STREETS—INJURIES TO PEDESTRIAN.

Cities must exercise reasonable care to keep their streets reasonably safe from falling substances.

2. MUNICIPAL CORPORATIONS (§ 819—USE OF STREETS—INJURIES TO PEDESTRIAN—EVIDENCE.

In an action for injuries from a falling limb in a city street, evidence held sufficient to go to the jury on the question as to whether the defendant's street commissioner could, in the exercise of reasonable care, have discovered the condition of the limb.

3. MUNICIPAL CORPORATIONS (§ 696)—USE OF STREETS—INJURIES TO PEDESTRIAN—TREES NEAR SIDEWALK.

Notwithstanding an adjoining proprietor has a property right in trees growing along the sidewalks in the streets, the city may remove them, if they are obstructions to travel or constitute a nuisance in some other respect.

4. MUNICIPAL CORPORATIONS (§ 791)—USE OF STREETS—INJURIES TO PEDESTRIAN—KNOWLEDGE OF DEFECT.

To render a city liable for injuries caused by a defective condition of its streets, the defective condition need not have been noticed; it being necessary only that the defect was one which could have been discovered by reasonable care.

5. MUNICIPAL CORPORATIONS (§ 778)—USE OF STREETS—INJURIES TO PEDESTRIAN— PROBABLE INJURY.

That an injury from a falling limb in a city street was improbable will not relieve the city from liability, as it must guard against all sources of danger that threaten the safety of persons on its streets.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by Emma Lundy against the City of Sedalia. From a judgment for plaintiff, defendant appeals. Affirmed.

E. W. Couey and W. W. Blain, for appellant. A. L. Shortridge and W. D. Steele, for respondent.

BROADDUS, P. J.

This is an action for damages for an injury which plaintiff claims to have received while passing along a sidewalk in a resident district of the city of Sedalia. The injury was caused by a dead limb falling from a maple tree which grew between the curb and sidewalk in front of resident property. The injury occurred on the 14th day of September, 1909, and while the tree was in foliage. The maple tree in question was somewhat decayed on its west side, and had a dead limb about eleven inches in diameter and from four to six feet long which extended in an angling position somewhat upward, over and about seven feet above the sidewalk. The day in question was clear and calm, and while plaintiff and her sister were passing along the sidewalk, and when they came under the tree the limb fell from its position and struck and severely injured plaintiff. The evidence showed that the limb was rotten to such an extent that the outer end broke into pieces when it hit the sidewalk, and that it had been in a rotten condition for a long time. Exhibit A shows the appearance of the tree and the position of the limb on it before it fell upon plaintiff. There was no evidence that any of the city's officers had any knowledge of the existence of the dead limb in question, and the court so instructed the jury. No complaint was ever made to the city officials that the limb was dangerous, or that any one ever gave it particular attention. Its condition seems to have escaped the attention of persons passing over the walk, or, at least, there was no evidence to that effect except that of one person, who stated that she had noticed the dead limb, but it had not occurred to her that it was dangerous. The plaintiff recovered in the sum of $800, from which defendant appealed.

The principal question raised by the city is that the judgment is not supported by the evidence, and for that reason the court should have given the defendant's instruction at the close of plaintiff's testimony and at the close of all the testimony that under the pleadings the plaintiff was not entitled to recover.

It is the law that "cities must exercise reasonable care to keep their streets reasonably safe from falling substances as well as from defects in the roadbed." Loth v. City of Columbia Theater Co., 197 Mo. 349, 94 S. W. 852; Franke v. City of St. Louis, 110 Mo. 516, 19 S. W. 938. There is no doubt about the duty of cities in such cases. But appellant contends that it was not shown that defendant was guilty of such negligence as would render the city liable for the injury plaintiff sustained. The...