McCall v. City of Butler

• Decision Date: 06 July 1926
• Docket Number: No. 15676.,15676.
• Citation: 285 S.W. 1018
• Parties: McCALL v. CITY OF BUTLER.
• Court: Missouri Court of Appeals

285 S.W. 1018

McCALL v. CITY OF BUTLER.

No. 15676.

Kansas City Court of Appeals. Missouri.

July 6, 1926.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Viva McCall against the City of Butler. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

De Armond & Maxey, of Butler, for appellant.

T. W. Silvers, of Butler, for respondent.

ARNOLD, J.

This is an action in damages for personal injury, and for medical services and nurse's care.

Defendant is a city of the third class, incorporated, and is the county seat of Bates county, Mo. On February 25, 1925, between 8:30 and 9 o'clock p. m., plaintiff and her husband, Fred McCall, and Claude Hoots and wife, Elsie Hoots, were riding in a one-horse single seated buggy, going east on Dakota street in said city. The four were on the one seat, Claude Hoots being on the right side on the seat and Fred McCall on his lap, driving. On the left was Mrs. McCall, and on her lap was Mrs. Hoots.

Dakota street runs east and west from the southeast corner of the public square in Butler, and is a dirt street, not paved. When the party thus seated in the buggy reached a point about two and a half blocks east of the public square, the right front wheel of the buggy dropped into a hole, or rut, of a depth variously estimated by witnesses as four to eighteen inches in depth. The buggy turned over on its side, the driver, Fred McCall, was thrown therefrom to the south side of the horse, and to a point near the horse's head. Mrs. Hoots and plaintiff fell, or were thrown, to the side of the buggy as it tipped over toward the south or right side, and plaintiff's left arm was broken between the elbow and shoulder, and she sustained bruises about her head, face, and various parts of her body. Soon after the accident it was discovered that a bolt holding the left front coiner of the buggy bed to the spring was gone. Evidence introduced in behalf of defendant was to the effect that the buggy was second or third hand, and that its condition was unsound both before and after the accident. Shortly after the accident an automobile was called, and plaintiff, with her husband and Mrs. Hoots, walked a short distance to the waiting car. The driver of the car testified that he drove east to the next turn north and took plaintiff to a doctor's office.

The negligence charge in the petition is as follows:

"That on the night of February 28, 1925, and for a long time prior thereto, said street had become unfit and dangerous to travel on, by reason of certain deep holes and ruts therein at a point about two and a half blocks east of the public square in said city, and about half way east and west between the streets known as Willow avenue and Austin street; that the officers, agents, and employees of the defendant had actual knowledge of the condition of said street at said place, or, by the exercise of reasonable diligence on their part, could have known of the said condition. Plaintiff further states that there were no lights displayed in said street to give warning of its condition, though known to be dangerous, and altho said street for a long space of time was in the condition aforesaid, the defendant city carelessly and negligently failed to put the same in safe condition, and carelessly and negligently failed to warn the public of such condition."

The petition also alleges that plaintiff was in the exercise of ordinary care on her part; that within 90 days she caused notice to be served upon the mayor of defendant city, and also filed her claim with the city for allowance, and the same has been refused.

The answer admits the corporate status of defendant as a city of the third class, and that Dakota street is a public thoroughfare therein, and generally denies all other allegations of the petition, and, for further answer, specifically denies that Dakota street was unfit and dangerous to travel; that the officers, agents, and employés of defendant knew or believed that said street was in the condition alleged in the petition, or that by reasonable diligence they could have known or discovered any such condition; that any of the street lights placed and displayed at any of the street intersections on said street were not lighted and burning.

The answer further alleges that the street, at all times prior to the accident, and at that time, was kept in a safe and reasonable condition for travel and use; that a few days prior to February 28, 1925, said street was carefully and well dragged; that for a long time prior to said date the weather had been rainy, and the dirt streets of said city had been muddy; that at the point of the accident, and extending across said street, and for some 25 to 30 feet along said street, was a place which had not been dried out evenly with the rest of the street, and at the time said street was dragged and at the time of the alleged accident this place was muddy, but that said street at said time was not unsafe or dangerous for travel or for reasonable and proper use.

The answer contains a plea of contributory negligence in that plaintiff knew the condition of the streets in defendant city, and that many wet and muddy places remained therein after a period of wet weather; that plaintiff knew the condition of the buggy, and that it was overloaded; that said accident was solely due to the carelessness and negligence of plaintiff in riding in and using said vehicle, then old and in bad repair, and loaded beyond capacity; that the driver and occupants of said vehicle were not driving over said street in a reasonable or careful manner.

The cause was tried to a jury, and verdict was for plaintiff in the sum of $100. A motion for a new trial was ineffectual, and defendant has appealed.

It is urged the evidence fails to show negligence on the part of defendant, and that the court erred in refusing to direct a verdict for defendant as requested at the close of plaintiff's evidence and again at the close of all the evidence. In considering this charge, it is necessary to refer briefly to the evidence adduced.

The issues presented by the pleadings were: (1) The condition of the street at the place" of the accident; (2) negligence of the city in permitting the street to remain in the condition it was at the time of the accident, after previously learning of such condition; (3) contributory negligence of plaintiff; and (4) the amount of damage.

In support of the issues in behalf of plaintiff, a number of witnesses testified they had traveled on the street in question during the fall and winter preceding the accident, and that, at the point in question, the street had been in very bad condition for several months. There was also testimony to the same effect by witnesses who had passed along the street at that point on the day of the accident and on the preceding day. The answer admits Butler is a city of the third class, and that Dakota street is a public highway within the limits of the city. There was evidence on the part of plaintiff to the effect that there were deep ruts and ditches in the street at the place of the accident; that the right front wheel of the buggy dropped into one of these, and turned on...