Moore v. Monarch Gasoline & Oil Co.

• Decision Date: 26 January 1931
• Parties: EVA MOORE, RESPONDENT, v. MONARCH GASOLINE AND OIL COMPANY, APPELLANT
• Court: Kansas Court of Appeals

35 S.W.2d 669

225 Mo.App. 115

EVA MOORE, RESPONDENT, v. MONARCH GASOLINE AND OIL COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

January 26, 1931

Appeal from Circuit Court of Jackson County.--Hon. Brown Harris Judge.

AFFIRMED.

Judgment affirmed.

W. H Skinner and Madden, Freeman & Madden for respondent.

Harris & Koontz for appellant.

CAMPBELL C. Boyer, C., concurs. Trimble, P. J., absent.

OPINION

CAMPBELL, C.

This is an action to recover damages for personal injuries sustained by plaintiff as the result of a fall upon a sidewalk. The plaintiff recovered, and the defendant appeals.

The sufficiency of plaintiff's petition is not questioned, and the answer is a general denial.

The evidence tends to show that defendant, a corporation, at the time of the accident, and continuously for a number of years immediately preceding that date, was engaged in operating a gasoline filling station located on Grand Avenue, Kansas City, Missouri; that some time before the alleged accident, the exact time not being shown, the defendant tore out the sidewalk extending north and south along the west side of said Grand Avenue at a point in front of its said station on Grand Avenue and constructed a driveway extending therefrom into the street; that prior to the construction of said driveway the public sidewalk was practically level except for a slight slope to the eastward; that that portion of the driveway designed as a sidewalk slopes from west to east; that it is seven feet in width, and the east line is at one place nine-tenths of a foot lower than the west side; that the slope of this sidewalk is not uniform, varying from an eight per cent grade to a thirteen per cent grade; that on the 26th day of January, 1926, plaintiff walked southward upon said sidewalk and passed onto said driveway; that she had taken three steps in the driveway when her right foot slipped; that she endeavored to catch herself, was unable to do so and fell, sustaining serious injuries; that her foot slipped down the slope and if the slope had not been there she would not have fallen; that it was snowing at the time and that she saw off and grease on the driveway; that she did not know the slope existed in the driveway.

The defendant did not offer evidence.

The errors assigned are: (1) That the court erred in refusing to give defendant's peremptory instruction at the close of plaintiff's evidence; and (2) that the court erred in giving plaintiff's instruction Number 1.

In support of the contention that its peremptory instruction should have been given, defendant argues that the duty to maintain and repair sidewalks and to keep them in reasonably safe condition rests upon the city, and a failure in that particular by the abutting property owner does not render such owner liable for damages.

The following cases cited by defendant sustain that proposition. [Smith v. Railway Company, 275 S.W. 53; Shaw v. Railway Company, 9 S.W.2d 835; Callaway v. Mercantile Company, 12 S.W.2d 491.]

The doctrine of those cases is not applicable to this case. In this case the defendant tore out the public sidewalk, which presumably was constructed by or under authority of the municipality, and for its own convenience and in furtherance of its business constructed the driveway, and in doing so changed the slope of the sidewalk from a three-tenths of a foot slope from west to east to a nine-tenths of a foot slope. It is well established law that when defendant tore out the old sidewalk and constructed the driveway for its use and benefit, the law imposed upon it the duty to construct a sidewalk that was reasonably safe for travel by pedestrians, and for its failure so to do it is liable to a pedestrian who, while in the exercise of ordinary care, is injured in consequence thereof. [Perrigo v. St Louis, 185 Mo. 274; 84 S.W. 30; Callaway v. Mercantile Company, 12 S.W.2d 491; Stewart v. Sheidley, 16 S.W.2d 607.] On that subject it has been said in a recent case "upon a person who employs a part of a public...