Mott v. Kansas City

• Decision Date: 01 May 1933
• Docket Number: No. 17776.,17776.
• Citation: 60 S.W.2d 736
• Parties: MOTT v. KANSAS CITY.
• Court: Missouri Court of Appeals

60 S.W.2d 736

MOTT v. KANSAS CITY.

No. 17776.

Kansas City Court of Appeals. Missouri.

May 1, 1933.

Rehearing Denied May 22, 1933.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be published in State Reports."

Action by Fred A. Mott, administrator of the estate of Harold P. Mott, deceased, against the City of Kansas City. Judgment for plaintiff, and defendant appeals.

Affirmed.

Geo. Kingsley, City Counselor, and Arthur R. Wolfe, Asst. City Counselor, both of Kansas City, for appellant.

Harry G. Kyle, J. B. McFarland, S. G. Edsell and Hume & Raymond, all of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000.00 and defendant has appealed.

The facts show that one Harold P. Mott, now deceased, on January 13th, 1930, about 12:10 a. m., fell, breaking his right hip, upon an icy public sidewalk, in Kansas City. The fall occurred in front of what is known as the Western Dental College building, located at the northeast corner of Tenth Street and Troost Avenue in said city. After the institution of this suit, by said Mott, he died on January 8th, 1931, and the cause was thereafter revived in the name of his father (the present plaintiff) Fred A. Mott, as administrator of his estate.

The facts further show that it had been snowing practically every day for a week prior to deceased's falling, except on the 12th of January there was no snow or sleet but there was a trace of rain or mist for 20 minutes beginning at 9:40 p. m.; that on January 9th there was 15.3 inches of snow and on January 12th there was 10.3 inches of snow upon the ground, the thawing temperature and rain having caused some of the snow to disappear between those days.

In his boyhood deceased was thrown from a bicycle and suffered an impacted fracture of his left thigh, resulting in some shortening of his left leg so that he walked with a light limp and used a cane some of the time. In January, 1930, he was 44 years of age. He owned a popcorn and candy concession in a theater in another part of town from where he fell. He would work until about 11 o'clock p. m., when he would return to his home at a hotel located at 916 Forest Avenue, about a block away from the place where he fell. He was unmarried, without children and was living with his father and mother at the hotel.

At the southwest corner of the college building on the first floor was located a drug store. East of the drug store, and between it and the main entrance of the building, were five or six double windows over which were awnings.

The petition alleges that the ice causing deceased to fall was occasioned by water dripping from these awnings to the sidewalk and there freezing.

The sidewalk at the place in question was not level but sloped toward the west or Troost Avenue and, from an examination of the photographs found in the abstract, it would appear that the sidewalk also sloped slightly from the building toward the curb. On the night of the fall deceased was in the drug store at closing time and he and the employees of the store, Harwood and Thorp, after it had been closed, left for their homes. Deceased and Thorp started to walk east on Tenth Street and Harwood to walk south, on the east side of Troost Avenue, to 12th Street & Troost Avenue.

Harwood testified that about the time he reached the northeast corner of Tenth Street & Troost Avenue Thorp "hollered" to him; that he turned and saw deceased on the sidewalk on the north side of Tenth Street about 10 or 12 feet east of the drug store or at a point about half way between the drug store and the Dental College entrance. Deceased was lying about a foot from the outer edge of the sidewalk. Harwood further testified that the sidewalk was about 9 feet in width and that the awnings, when down, would extend out over the sidewalk toward the south about 5 feet leaving about 4 feet of the sidewalk uncovered by the awnings. At another point in his testimony he said that the awnings covered about two-thirds of the sidewalk; that deceased after he fell was lying at a place where it was slick; that deceased had on an overcoat and overshoes and was carrying a cane; that the snow and ice had been shoveled off of the sidewalk in front of the drug store before that night; that the sidewalk was clear except where the awnings were; that deceased was lying with his head toward the east and his feet toward the west; that the place where deceased fell was "rough and uneven, as well as slick", and that there were lumps of ice along where the awnings were located, "I suppose it (water) dripped and naturally froze there"; that he had seen water dripping from the awnings.

Thorp testified that he was walking to the right and a little ahead of deceased at the time the latter fell; that neither deceased nor his cane came in contact with the witness when the former fell; that he did not see deceased fall and did not notice the sidewalk where he fell; that he did not think there was any snow or ice in front of the drug store; that deceased fell about midway between the drug store and the entrance to the building.

Plaintiff's witness, Ivers, testified that he lived at the same hotel where deceased lived; that he was in the drug store twice on the night that deceased fell and that he was there at 10 o'clock of the night in question; that the hotel where he lived faced Forest Avenue, the first street east of Troost; that he walked half a block from the hotel to the corner of Tenth Street & Forest Avenue and thence to the drug store and that there was no sleet or ice on the sidewalk from the hotel to the drug store, except where the awnings in question were located; that where the awnings were "there was ice, lots of ice"; that the sidewalk east of the entrance to the Dental College building was clean; that the ice at the awnings was "lumpy and rough"; that this condition was "around the edge of the awnings"; that the sidewalk west of the awnings in front of the drug store "seemed to be clean"; that the sidewalk was clean except along where the awnings were; that there was no sleet, snow or ice upon the sidewalk there, except that "there was ice, lumps of ice right along where those awnings is as you come from the entrance of the Dental College toward the drug store"; that he had seen the awnings there for a long time; that at times, prior to the time deceased fell, the weather would be thawing and the witness would notice water dripping from the awnings on to the sidewalk; that there was no thawing during the night that deceased fell.

Deceased's father, the plaintiff, testified that he was in the habit of going to the drug store about 5 or 6 o'clock every afternoon; that sometimes he would go in the mornings; that he was there on the 11th and 12th of January, 1930; that on those days "The Dental College had taken the snow off the entire length of the college, which occupies from the corner to the alley, and had shoveled the snow back, but hadn't taken it off of the walks"; that there was a foot of snow starting at the curb and extending toward the building that had not been removed. When asked to state what he observed on the 11th and 12th of January as he went to the drug store, he answered:

"There seems to be five windows there, and each window has an awning. The snow had accumulated during this time on the awnings. In the daytime it was sunshiny and warm. At night it was freezing. My recollection is there were four or five days there before when I noticed these awnings were dripping there and also there was some of this snow piled up down there, and it was ragged and icy, so much so that—well it was a spotted sidewalk, like we would meet anywhere where you could get around it, and it was just a place where it had sort of ridges in it, and I should judge from the drippings"; that "it made a sort of ragged condition of ridges running through, made it rough and icy"; that there was no sleet in front of the hotel, or the church at the northwest corner of Tenth Street & Forest Avenue or in front of the Dental College; that "where they had taken the snow off and it had fallen and for five days had dried, it was comparatively dry, where they had taken the snow out. Q. Now, were there any other rough places under the awnings? A. No, sir; I didn't see any"; that there was no ice, snow or sleet west of the awnings in front of the drug store; that when deceased fell someone telephoned to the witness and he arrived at the drug store within five minutes and there found deceased. The following questions were asked and the answers made thereto without any objection:

"Q. While you were there, was the place pointed out to you where your son fell. A. I asked them there and they pointed to me out to the corner of the drug store or above the east line of the drug store; just simply pointed there. That is all I asked that night.

"Q. Was that the place where this ridge of ice was? A. Yes, sir."

He further testified that the condition of the sidewalk, with reference to the ridges of ice, had existed for four or five days prior to deceased's fall; that the window under each of the awnings was a large double window with a partition in the center and that, when down, the awnings extended out about 5 feet from the building.

"Q. You would say the drippings then were about five feet out from the front of the building? A. Out from the front of the building.

"Q. Leaving about seven feet, then, space south of the dripping, between that and the curb? A. Yes"—

that he had noticed snow and ice upon the awnings and that the drippings would be in front of the awnings; that the drippings would cause obstructions of ice and when other drippings would flow down against these obstructions the water would "continually widen out" and the accumulated ice grew "larger" each day with freezing and thawing; that the formation of ice from these...