Nelson v. Kansas City

• Decision Date: 19 May 1913
• Citation: 157 S.W. 94,170 Mo. App. 542
• Parties: NELSON v. KANSAS CITY.
• Court: Missouri Court of Appeals

157 S.W. 94

170 Mo. App. 542

NELSON v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

1. MUNICIPAL CORPORATIONS (§ 733) — GOVERNMENTAL AND MINISTERIAL CAPACITIES — LIABILITY.

A city acts in a governmental and ministerial capacity in the improvement of its public streets, and it is not civilly liable for acts performed in its governmental capacity, but is liable for injuries resulting from a negligent construction or maintenance of the improvement.

2. MUNICIPAL CORPORATIONS (§ 733) — GOVERNMENTAL AND MINISTERIAL CAPACITIES — LIABILITY.

Where the construction of a catch-basin and auxiliary depression in the line of the usual

path of pedestrians was not pursuant to any legislative action or part of a general plan of street improvement adopted by the city, but the unusual location was selected by the city engineer, the city was liable for injuries to a pedestrian caused by the negligent construction of the basin and depression, for the act of the city engineer was ministerial.

3. MUNICIPAL CORPORATIONS (§ 742) — STREET IMPROVEMENTS — NEGLIGENCE — QUESTION FOR JURY.

Whether a city, constructing a catch-basin and auxiliary depression in the line of the usual path of pedestrians, was guilty of actionable negligence and liable for injuries to a pedestrian caused thereby held, under the evidence, for the jury.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Lillian Nelson against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

A. F. Evans, J. W. Garner, and A. F. Smith, all of Kansas City, for appellant. Kimbrell & White, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries sustained by falling on one of the public streets of Kansas City. The injury occurred December 3, 1910, at 10 o'clock p. m., at the intersection of Fourteenth and Locust streets. The petition alleges that defendant "carelessly and negligently permitted a depression and excavation to be and remain in said public streets at a point on said streets near the northeast corner of the intersection of the streets aforesaid and in the line of travel of persons going along the sidewalk on the north side of Fourteenth street and crossing directly across to the northwest corner of the intersection of said streets, and that defendant on the date last above mentioned, and for a long time prior thereto, permitted the street at said intersection to be and remain dark and improperly lighted, and that, on account of the things hereinbefore stated, the said street at said intersecting point was in a condition dangerous and unsafe to travelers along and upon said street; that said unsafe and dangerous condition of the streets, as hereinbefore set forth, was well known to defendant, or defendant, by the exercise of reasonable care, might have known thereof a sufficient length of time before the injury to plaintiff, as hereinabove set forth, to have repaired said street and thus avoided the injury to plaintiff." The answer is a general denial and a plea of contributory negligence. Plaintiff recovered judgment in the circuit court for $750, and defendant appealed.

The place of the injury is in a thickly settled part of the city. Both Locust and Fourteenth streets were paved with asphalt and had granitoid sidewalks. Plaintiff and her husband were traveling westward along the sidewalk on the north side of Fourteenth street. They walked abreast, and she was on the north side. At the crossing of Locust street she stepped from the curb to the asphalt pavement into a depression in front of a catch basin and fell to the pavement, receiving the injuries for which she claims damages. She was on the crossing, in the line of the sidewalk, and, of course, in the usual path of pedestrian travel on that side of Fourteenth street. There was an old medium-sized tree at the corner and in the sidewalk space. Three feet north of the tree was the south end of the cover of the catch basin. The opening of the basin faced west and was in the curb line. The depth of the opening from the surface of the sidewalk was 16 inches, and there was a sloping depression in the pavement towards the opening; the beginning of the slope at its south end being about midway between the basin cover and the tree. From that point to the tree...