Price v. City of Maryville

• Decision Date: 01 October 1913
• Citation: 174 Mo. App. 698,161 S.W. 295
• Parties: PRICE v. CITY OF MARYVILLE.
• Court: Missouri Court of Appeals

161 S.W. 295

174 Mo. A. 698

PRICE v. CITY OF MARYVILLE.

Kansas City Court of Appeals. Missouri.

October Term, 1913.

1. PLEADING (§ 428)—OBJECTIONS — OBJECTION TO EVIDENCE.

An objection to a petition, first made at the trial by objecting to the admission of evidence because the petition fails to state a cause of action, can prevail only in case the petition, construed with every reasonable intendment in its favor which the allegations will justify, wholly fails to state a cause of action.

2. MUNICIPAL CORPORATIONS (§ 768)—DEFECTIVE STREETS—SIDEWALKS— NATURE OF DEFECT.

Cities are not required to make their sidewalks level and without incline or grade regardless of the topography; and, where a sidewalk is not negligently constructed, nor allowed to become unsafe or dangerous, an injury caused by mere slant in the walk is not actionable.

3. MUNICIPAL CORPORATIONS (§ 768)— STREETS—DEFECTS—STEP-OFF.

A city is not liable for a step-off in a sidewalk rendered necessary in the construction of the walk, and which is maintained in a reasonably and ordinarily safe condition; the plan of construction not being manifestly unsafe.

4. MUNICIPAL CORPORATIONS (§ 768)—SIDEWALKS —DEFECTS.

Where plaintiff was injured by stepping on a low place in a sidewalk at night, which was the result of a defect in the walk, and not a mere step-off, resulting from the plan of construction made necessary by surrounding topographical conditions, and the city had notice of the defect, but had failed to repair the same, the city was liable.

5. MUNICIPAL CORPORATIONS (§ 816)—VARIANCE —ISSUES AND PROOF.

Where, in an action for injuries to plaintiff on a defective sidewalk, the petition alleged a defect in the walk and a fall thereon, evidence held not to constitute a variance as showing that plaintiff walked into a ditch instead of into a low place in the walk.

6. MUNICIPAL CORPORATIONS (§ 821)—DEFECTIVE SIDEWALKS—NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to plaintiff by stepping off of a low place on the center stone of a flag walk, whether the city was negligent in permitting such defect to remain held for the jury.

7. TRIAL (§ 260)—REQUEST TO CHARGE—INSTRUCTIONS GIVEN.

Where the court in four instructions charged that plaintiff could recover only in case she exercised the care and caution that an ordinarily prudent person would exercise under like conditions and circumstances, and could not recover if she walked over the crossing in a negligent

manner, it was not error to refuse a request to charge, declaring the care required of a person in walking over such walk.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Action by Laura Price against the City of Maryville. Judgment for plaintiff, and defendant appeals. Affirmed.

W. E. Wiles of Cherokee, Okl., for appellant. Cook, Cummins & Dawson, of Maryville, for respondent.

TRIMBLE, J.

An action for damages from a fall caused by an alleged defect in a street crossing. The petition charges that the walk or crossing at the point in question, was in an unsafe and dangerous condition in that the earth under said crossing or walk at said point had washed away, allowing the walk to sink so as to leave a depression or sunken place which would cause persons stepping into same to fall and injure themselves; that this condition had existed for such a length of time prior to the injury that the city knew of it, or, by the exercise of ordinary care might have discovered it, and by ordinary diligence might have repaired said walk before plaintiff got hurt, and that the city was negligent in permitting the walk to remain in such condition; that plaintiff, while walking on said walk after dark, and using due care, stepped into said sunken place, and was thrown down and thereby injured. The answer was a general denial and a plea of contributory negligence.

It is admitted that plaintiff was seriously injured as a result of her fall; that the walk or crossing had been in a more or less defective condition for a long time prior to the injury, and the city treasurer had notified the mayor of such condition about a week or 10 days before plaintiff fell. There are but two questions of fact left in dispute, to wit: Was the walk reasonably safe for travel; and was plaintiff in the exercise of due care?

The walk extended north across an east and west street, and lay on the west side of the intersection of this street with another running north and south. Along the south side of this intersection, and running east and west, a 12-inch drain tile had been laid three feet under ground. It extended west to the west line of the north and south crossing walk in question. The ditch in which the drain tile lay was filled, and the tile of course covered, but, from the west edge of the walk on west, the ditch was open. The walk was made of brick where it crossed the central or wagon traveled portion of the street, but from thence south across the parking of the street, and over this drain tile, a distance of about 15 feet, to the sidewalk running east and west, the crossing walk was made of flagstones. These were about four feet long and two feet wide, and were laid lengthwise east and west, making the walk...