Pearce v. Kansas City
| Decision Date | 15 May 1911 |
| Citation | 137 S.W. 629,156 Mo.App. 230 |
| Parties | MARIA PEARCE, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.
Judgment reversed and cause remanded.
John G Park and Francis M. Hayward for appellant.
E. E Hairgrove, John A. Daniel and J. H. Grier for respondent.
Plaintiff, a woman fifty-seven years old, fell on a public sidewalk in Kansas City, was injured, and sued to recover the resulting damages. The cause of action alleged in the petition is negligence of the defendant in the discharge of its duty to construct and maintain the sidewalk in a reasonably safe condition for the use of pedestrians. The defenses pleaded in the answer are a general traverse and a plea of contributory negligence. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of two thousand dollars, and the cause is here on the appeal of defendant.
The injury occurred the night of August 10, 1907, on St. John avenue between Oakley and Drury avenues in a somewhat sparsely settled residence district. None of these streets was paved but nearly two years prior to the injury the city had laid granitoid sidewalks on St. John avenue, the course of which is east and west. An unpaved alley fourteen feet wide crossed St. John avenue midway between Oakley and Drury avenues. The alley formed a break in the granitoid walk and, at first, no crossing was laid nor was the alley graded. A step was left of a foot or more from the end of the sidewalk at the west line of the alley. Some time after the completion of the sidewalk the city put in a board crossing consisting of two planks placed side by side on a plane and of an apron plank on each side to form an approach from the surface of the alley to the top of the crossing. When first built this crossing which was narrower than the sidewalk was placed in the middle of the sidewalk course but on account of the slope of the alley towards the north, teamsters complained that the crossing formed an obstacle to vehicles using the alley and the city moved the crossing nearer the south line of the sidewalk course. There is evidence tending to show that in time the vehicles passing over the crossing shoved it further south to an extent to leave the north half of the sidewalk course across the alley unprovided with any crossing and with a step off at the west line of the alley which constantly deepened until at the time of the injury it was from eighteen inches to two feet deep.
Plaintiff, accompanied by a neighbor woman and her little boy, approached this crossing from the west, on a dark night. She was unfamiliar with the sidewalk and did not know of the condition of the crossing. She was on the north side of the walk and, according to her evidence, was using ordinary care. Not being able to see the hole at the end of the sidewalk she stepped off into it and fell and broke the fibula of one of her legs. There is evidence to the effect that the condition of the place remained unchanged during a period of from four to six months before the injury, but we find substantial evidence supporting a reasonable inference that the cross walk was constantly being pushed further south, thereby enlarging the surface area of the hole into which plaintiff fell and that the hole was gradually being deepened, increasing from day to day the danger to pedestrians using the way on dark nights.
Plaintiff's companion, on direct examination, corroborated her version of the injury, i. e., that, unwittingly, she stepped into the hole, the presence of which was not then obvious to ordinary inspection, but on cross examination the witness was confronted with her deposition taken some time before the trial in which she stated that plaintiff, in making the step caught her heel on the end of the sidewalk and was thrown down by tripping. She admitted that her memory of the event was better when her deposition was taken than it was at the trial and in answer to the question, "Then she did catch her heel on the east end of the granitoid walk which meets the alley on the west and went down on her knee," replied, "yes, into the alley."
The second instruction given at the request of plaintiff presented to the jury the issue of negligence of defendant not in failing to construct a reasonably safe crossing but in failing "to keep the same in a reasonable state of repair," and in relation to the duty of the city to maintain the...
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