Muser v. Kansas City

Citation249 S.W. 681
Decision Date02 April 1923
Docket NumberNo. 14641.,14641.
PartiesMUSER v. KANSAS CITY.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Rose Muser, by her next friend, against Kansas City. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John B. Pew and Ilus M. Lee, both of Kansas City, for appellant.

Kelly, Buchholz, Kimbrell & O'Donnell, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff was injured while playing upon an amusement device maintained by the city in one of its public parks for the use of children at play therein. Alleging that the device was not reasonably safe because of its defective and worn condition, this suit was brought for damages, and a judgment for $500 was recovered, from which defendant has prosecuted this appeal.

The petition set forth that the amusement device was maintained by the city for the healthful play and exercise of the children frequenting said park; that it was known an a "teeter-totter," an apparatus consisting of a long plank attached to a standard or tripod in the center thereof, and was originally so constructed that a child sitting or riding on the end of the plank could cause the same to move, so that when the feet of one child touched the ground the child on the other end would have ascended several feet into the air, and then the process would berepeated in reverse; that when first constructed it was furnished with handles about two feet from either end of the plank, so that a child riding on the end thereof in a normal position could grasp and hold on to the handles in front of said child.

The petition further alleged that the device was in a defective and dangerous and unsafe condition, in that one of the ends of the plank had been broken off at the place where the handles had been attached, so that a child using the device at the broken end could not grasp the handles; that plaintiff, upon entering the park for recreation and exercise, was directed by the person in charge to use the teeter-totter, and thereupon plaintiff mounted the same at the broken end, and while riding thereon, exercising ordinary care, and when about 10 feet from the ground was thrown therefrom to the earth and injured; that same was caused by the negligence of the defendant, for the reason that it maintained said device in a defective and not reasonably safe condition for use, in that theend was broken off, so that plaintiff could not seize the handles and maintain her position that defendant was also negligent, in that said plank was attached to said standard or tripod by an iron bolt, "and that, from long use, the hole in said standard or tripod through which said bolt passed had become worn and enlarged, so that said Plank would not maintain its horizontal position, but jerked from side to side and was rickety and unsteady, and that, by reason of plaintiff's inability to grasp said handles, and by reason of the said unsteadiness of said plank, plaintiff was caused to be thrown therefrom as aforesaid and injured, so that her right arm was broken at the elbow," whereby it became stiff and unserviceable, etc.

The evidence amply tended to support the allegations of the petition. The teeter-totter consisted of a board about 12 feet in length, on which, about 18 inches from each end, before the same became defective, were handles or crossbars. Through the center of the board was a bolt set into a socket or tripod. Both socket and bolt were well worn, and a part of the board had been broken off some months before, close to the handles. The device was put into the park and maintained there for 12 years prior to plaintiff's hurt. It was a combination board, so made that it could go around and around as well as up and down, or both or either way. The caretaker of the park had noticed that the board was broken off for months before, and he had at once reported the defect to the authorities. Nevertheless the device continued to be maintained...

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10 cases
  • Meierotto v. Thompson
    • United States
    • Missouri Supreme Court
    • 10 Marzo 1947
    ...Bach v. Diekroeger, 184 S.W. (2d) 755; Grand-Morgan Theatre Co. v. Kearney, 40 F. (2d) 239; Benson v. Smith, 38 S.W. (2d) 749; Muser v. Kansas City, 249 S.W. 681. (6) The court erred in giving and reading to the jury Instruction 3 because it is an abstract statement of law erroneously injec......
  • Nurseries v. New York, Chicago and St. Louis Railroad Co.
    • United States
    • Missouri Court of Appeals
    • 5 Mayo 1925
    ... ... Ry ... Co. v. Commercial Union Insurance Co., 139 U.S. 223; ... Scheffer v. Washington City Midland, etc., R. Co., ... 105 U.S. 249; Denny v. Railroad, 13 Gray 481; ... Empire State ... 519; Black v. Railway Co., 217 Mo. 685; ... State ex rel. v. Ellison, 270 Mo. 645; Muser v ... Kansas City, 249 S.W. 681. (3) The court erred in giving ... plaintiff's instruction ... ...
  • Meierotto v. Thompson
    • United States
    • Missouri Supreme Court
    • 10 Marzo 1947
    ...pleaded. Bach v. Diekroeger, 184 S.W.2d 755; Grand-Morgan Theatre Co. v. Kearney, 40 F.2d 239; Benson v. Smith, 38 S.W.2d 749; Muser v. Kansas City, 249 S.W. 681. The court erred in giving and reading to the jury Instruction 3 because it is an abstract statement of law erroneously injecting......
  • Bertke v. Hoffman
    • United States
    • Missouri Supreme Court
    • 27 Mayo 1932
    ... ... [50 S.W.2d 108] ...         Appeal from Circuit Court of City of St. Louis. — Hon. Erwin G. Ossing, Judge ...         AFFIRMED ... 710; Reynolds v. Al. G. Barnes Amusement Co., 214 Mo. App. 391, 253 S.W. 140; Muser v. Kansas City (Mo. App.), 249 S.W. 681. (b) It fails to require the jury to find that the failure ... ...
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