McCormick v. Kansas City

• Decision Date: 14 July 1952
• Docket Number: No. 2,No. 42776,42776,2
• Citation: 250 S.W.2d 524
• Parties: McCORMICK v. KANSAS CITY
• Court: Missouri Supreme Court

Page 524

250 S.W.2d 524

McCORMICK v. KANSAS CITY.

No. 42776.

Supreme Court of Missouri, Division No. 2.

July 14, 1952.

David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, T. James Conway, Asst. City Counselor, all of Kansas City, for appellant.

Charles F. Tucker, Paul C. Sprinkle, William F. Knowles, Roy F. Carter, Sprinkle, Knowles & Carter, Kansas City, for respondent.

WESTHUES, Commissioner.

Plaintiff McCormick was injured on April 24, 1949, while riding in the back seat of a car owned by him and driven by his son when the car passed through a dip or depression in the roadway of College Avenue at 50th Street in Kansas City, Missouri. He filed this suit against the City of Kansas City and a trial resulted in a verdict in plaintiff's favor in the sum of $10,000. From the judgment, the City appealed.

Plaintiff in his petition based his cause of action against the City on the theory that the City was negligent in failing to keep its streets, in particular College Avenue at 50th Street, in a reasonably safe condition and that due to such negligence he was injured.

The evidence disclosed the following: Plaintiff was riding in the back seat of his car. His son was driving and plaintiff's wife was riding in the front seat with the son. They were traveling south on College Avenue. There was a slight downgrade (from north to south) on College toward 50th Street for a distance of about 250 feet. At the north side of 50th Street where it intersected College Avenue there was a depression estimated by witnesses to be 4 to 8 inches at its deepest point. This depression extended across College Avenue from east to west and served as a drain for surface water. The width of the depression from north to south was about 15 feet. The evidence was that there was a gradual slope downward and upward through the depression. When plaintiff's car passed through this dip or depression, the car bounced and plaintiff was thrown upward and his head struck against the top of the car causing a fracture of a vertebra.

The defendant City contends on this appeal that plaintiff's evidence was insufficient to sustain a verdict in his favor. It is claimed that plaintiff's witnesses estimated the depth of the depression; that such evidence was of no value and was inaccurate because it was based on guess and speculation. Witnesses for plaintiff and for the defendant City estimated the depth of the depression to be from 4 to 8 inches. One witness for the defendant who was employed in the city engineer's office gave the accurate measurements of the depression to be as follows: The depth at deepest point, 6 inches; the width, 15 feet; and the length from the east to the west curb of College Avenue, 26 feet. There was a dispute in the evidence as to when repairs had been made at the point in question. The City contended that the surface of the street in the depression was repaired before the plaintiff was injured. A number of plaintiff's witnesses testified that repairs were made after plaintiff was injured and that in making the repairs the depression was filled to some extent. There was also a dispute in the evidence as to the extent a car would bounce when going through the depression at various speeds. Plaintiff, his wife, and his son testified that at the time plaintiff was injured the car was being driven at about 12 to 15 miles per hour; that they did not see the depression or dip before they drove through it. On this point the evidence was in conflict. Some witnesses testified the depression could be seen in time to reduce the speed of a car; other witnesses testified to the contrary. The record does not disclose whether any warning signs were posted as to the existence of the dip.

As we view the present record, the evidence was sufficient to submit to a jury the question of whether the City was negligent in maintaining the depression in the street. 6o C.J.S., Municipal Corporations, Sec. 943, page 457; Little v. Kansas City, 239 Mo.App. 1007, 197 S.W.2d 1005; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, loc. cit. 564(3-5).

The defendant City also says that the instruction given by the court at plaintiff's request authorizing a verdict for plaintiff was erroneous because it failed to submit whether or not the City was negligent. This contention of the City must be sustained. The instruction (No. 1) reads as follows:

'The Court instructs the jury that the defendant City of Kansas City, Missouri was required to keep its streets in a reasonably safe condition for travel by...