Maxwell v. Kansas City

• Decision Date: 05 July 1932
• Parties: ANNA P. MAXWELL, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT
• Court: Kansas Court of Appeals

52 S.W.2d 487

227 Mo.App. 234

ANNA P. MAXWELL, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT

Court of Appeals of Missouri, Kansas City

July 5, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.

REVERSED.

Judgment reversed.

Allan R. Browne and Grover & Browne for respondent.

George Kingsley, James M. Larkin and John J. Cosgrove for appellant.

TRIMBLE P. J. Bland, J., concurs; Arnold, J., absent.

OPINION

TRIMBLE

TRIMBLE, P. J.--Plaintiff's action is to recover damages for injuries alleged to have been sustained by reason of her fall on a defective sidewalk whereby she says both bones of her right ankle were broken in several places, she suffered much pain, lost a great deal of sleep has been compelled to expend $ 100 for a doctor and will be compelled to pay a like further sum, for all of which she asks $ 7500.

The answer was a general denial, coupled with a plea that "plaintiff's conduct contributed to any injuries plaintiff may have received in this; that plaintiff negligently failed to use plaintiff's eyes and senses in selecting the course which plaintiff was pursuing, and negligently failed to use plaintiff's eyes and senses in the use of such course."

Plaintiff filed a reply which was a general denial.

The defendant city demurred to the evidence, both at the close of plaintiff's and at the end of the entire case; but each demurrer was overruled.

The jury returned a three-fourths verdict for plaintiff in the sum of $ 1000, and defendant has appealed.

Defendant contends (1) that plaintiff failed to make a case for the jury, (2) that the court erred in overruling the demurrer, (3) that plaintiff's instruction No. 1 is erroneous, and (4) that the trial court abused its discretion in permitting the introduction of plaintiff's rebuttal testimony which defendant also says is incompetent.

The petition alleges that about 11:30 A. M., February 13, 1929, at a point about in front of 704 Spruce street, she was caused to fall on the sidewalk by the negligence of defendant in that--

"It negligently failed to keep and maintain said sidewalk at the point where plaintiff fell in a reasonable condition of repair in this: that it was bulged up and the surface broken, cracked and irregular and jagged, forming a sudden irregularity and small crater and elevated place into which plaintiff stepped and on which bulged and elevated place she tripped."

The petition further alleged that these facts existed on and long prior to said February 13, 1929, and rendered the walk not reasonably safe for pedestrians, as defendant knew or by due care could have known, by due care, in time to have remedied the same long prior to the fall.

Plaintiff's evidence was that she, a married woman, the mother of one child and thirty-five years old, was going south on the west side of Spruce street between Seventh and Eighth streets on her way to attend a Sunday school class-meeting. She is five feet, three and one-half inches tall, and weighs 175 pounds.

She was asked "as you got in front of 704 Spruce street, what happened?" (All italics the author's.)

"A. Well, I tripped on the raised place in the sidewalk. The tree, of course, it had grown under the other slab of the walk, elevating it quite a ways and beginning in the middle of the walk, a little bit smaller elevation and there was some ice caked in there.

. . . .

"Q. And what was it you tripped on there, with what foot? A. I tripped with the right foot on the elevation of that slab, just caught my heel, just the edge of my heel, throwing me back slightly, slipping.

. . . .

"Q. Your right heel? A. Yes, my heel caught and throwing me back and it was caught back under me.

"Q. Mrs. Maxwell, what place on the sidewalk was it you fell with reference to towards the curb or towards the house side? A. At the curb side it was; near the curb side.

"Q. Was that up-hill, level, or down-hill? A. No, I was going, you might say, down-hill. Spruce is down-hill most of the way, especially from Independence Avenue to Eighth street.

"Q. From Seventh to Eighth? A. From Seventh to Eighth is quite a hill.

"Q. To the south? A. Yes, and I was going down-hill.

. . . .

"Q. Did you see this place before you stepped on it? A. No, sir.

"Q. How were you looking as you went along there? A. I was looking southward. I was walking along in an ordinary way.

"Q. Looking where you were going? A. Yes.

"Q. Mrs. Maxwell, as your right foot caught you say your right heel caught there on that place where it was tipped up, bulged up, what did you do? What did your other foot do? A. Well, in trying to catch myself or get my balance it slipped and went up and then of course I sat right down.

"Q. What did your left foot slip on? A. Well, I judged this ice there, that small cake of ice there.

. . . .

"Q. At any rate, your left foot went where then? A. Well, it just went up.

"Q. You mean went out? A. Went out, yes.

"Q. In front of you? A. Yes, in front of me and I was caught.

"Q. How did you go down? What was your position? A. Well, I fell back. I fell north. I fell right straight back. My foot caught, my heel caught here (indicating) and I was laying back.

"Q. Your heel caught where? A. Right in there (indicating).

"Q. Where with reference to the pavement and the bulged place? A. You mean how near it?

"Q. Yes. A. Well, right on the--

"Q. (Interrupting) Right on the place that was bulged? A. Yes, right on the edge of the bulge there.

"Q. Then, your right foot was where when you came down? A. It was under me, just doubled back, is the way it was. It threw me with a jerk.

"Q. Did you fall full length? Did you go down full length? A. Yes.

"Q. Lying clear back on your back? A. Yes."

On cross-examination, she testified:

"Q. (By MR. COSGROVE) Now, Mrs. Maxwell, the slab itself was perfectly smooth and level on the surface, wasn't it? A. What do you mean?

"Q. The walking surface. There were no holes there? A. No.

"Q. Or crumbled places? A. No, no holes.

"Q. Or crumbled places on top of the slab? A. No, just that elevation.

. . . .

"Q. Was there any obstruction or anything around this projection that would have prevented you from seeing it? A. Yes; there was ice that was just a little bit of it down in that place until it was enough to obstruct the view of that.

"Q. You mean to say there was ice down in that crack? A. Yes, the walk was clean all except right at that joint in the walk there at that elevation where it was lower and had caked in there.

. . . .

"Q. You say you had lived there at that place five years and had used that sidewalk during that entire five years? A. Yes, sir.

"Q. About how frequently did you walk over that sidewalk, as much as once a week? A. No, I don't think I did.

"Q. As much as once a month? A. Well no, I shouldn't judge I walked over that walk once a month.

"Q. What is your best recollection now as to how often you walked over this place where this condition existed? A. Well, about once every three months.

"Q. About once every three months; and had you seen this place before this time? A. No, sir.

"Q. Never had seen it? A. No, sir.

"Q. Do you know how long it had been there? A. No, sir.

"Q. You had never noticed that before? A. No, sir.

"Q. In the five years that you had been going over it about once every three months you had never seen this difference in elevation in the sidewalk. A. No, sir.

. . . .

"Q. What was the first thing you noticed unusual when you walked along there? A. You mean--

"Q. What was the first thing that appeared unusual? A. Well, it was when my heel caught on that.

"Q. The heel on your right foot. A. Yes, sir.

"Q. That was the first thing that you noticed? A. Yes.

"Q. Then did you look down and examine the place? A. No, I didn't have time then.

"Q. Then, after you say your heel caught against it, what next happened? A. Well, I was screaming by that time.

"Q. Something else happened then, didn't it? You didn't just stand there with your heel against that obstruction? A. Well, it threw me. It threw me back.

"Q. What threw you back? A. Catching my heel, I was walking in an ordinary way and was ready to step with this foot (indicating) and when this other was caught, naturally I was thrown back.

"Q. Did you step with the other foot? A. I started and as it caught me--

"Q. (Interrupting) Did you step the other foot on the ground? A. Yes, I stepped the other foot this way (indicating).

"Q. The other foot as I understand you a while ago slipped out from under you? A. No.

"Q. What did happen? A. I said as I caught my heel and went to step with this (indicating), this heel was caught with a jar and I just slipped and went forward.

"Q. I understand you to say in your direct examination something about your heel slipping on some ice. A. No, you didn't understand me to say my left heel. I was stepping with this foot (indicating).

"Q. Your left foot? A. Yes, and it just (indicating) like this.

"Q. Was that because of some ice there on the sidewalk? A. I told you there was ice in that crack in the walk.

"Q. I didn't ask you what was there. I asked you whether that was the cause of the other foot slipping? A. In getting my balance, I can't say what caused it to slip."

Although it is claimed in the brief that plaintiff was carrying a container or bowl of something, we are unable to find anything in the record to show that she was carrying a container. She testified she was wearing galoshes and shoes with ordinary heels two inches high. The only witness near plaintiff when she fell could not be found or obtained at the trial and there is no other testimony as to the cause or manner of her fall.

Did the court err in overruling the demurrer offered at the close of the plaintiff's...