Pyburn v. Kansas City
| Decision Date | 27 May 1912 |
| Citation | 148 S.W. 193,166 Mo.App. 150 |
| Parties | CLAUDIE MAY PYBURN, Respondent, v. KANSAS CITY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John G Park and Henry S. Conrad for appellants.
T. J Madden for respondent.
Plaintiff was injured by driving into an excavation made in one of the streets of Kansas City by defendant Thompson. She brought this action against both Thompson and the city, and recovered judgment against both in the trial court.
There was evidence tending to show that the city issued a permit to Thompson to make the excavation and that when made it was dangerous to those using the street, especially those driving vehicles after night. That plaintiff and another woman and some children were driving a one-horse vehicle along the street after dark, when they suddenly, without warning, drove into the hole. The evidence tended to show that in excavating the dirt was thrown up on the sides, perhaps three feet high, and that in protecting the place two railroad ties were used. The man who placed them said he put one "on the end of the dirt and the other on top; and I tied the lantern to it with a little piece of baling wire." There was no evidence directly contradicting the statement that the lantern was left lighted and fastened to the railroad tie. There was evidence tending to show that it was not lighted when the mishap occurred.
It was the duty of the defendants to protect people, in lawful use of the street, either by guarding the excavation, or by placing a red lantern so as that it could be seen and operate as a warning. But that duty was performed if the light was properly placed and secured by the workmen on quitting work on the evening prior to the injury. If it was displaced afterwards, without defendant's fault, no blame can attach to them. [Myers v. Kansas City, 108 Mo. 480, 18 S.W. 914; Hesselbach v. St. Louis, 179 Mo. 505, 78 S.W. 1009; Ball v. Independence, 41 Mo.App. 469; Welsh v. City of Lansing, 111 Mich. 589, 70 N.W. 129.]
The foregoing will make clear our view of the criticism on plaintiff's instructions wherein it was declared that it was the duty of defendants to have the place guarded or lighted at the time plaintiff drove into it. This declaration was emphasized in the instructions several times and there can be no doubt that it could only have been understood to mean that though a light was properly placed several hours before, when the men quit work, yet if it was not there when pla...
To continue reading
Request your trial