Quinlan v. Kansas City

• Decision Date: 07 February 1904
• Citation: 78 S.W. 660,104 Mo.App. 616
• Parties: MARY QUINLAN, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

78 S.W. 660

104 Mo.App. 616

MARY QUINLAN, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

February 7, 1904

Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Cause affirmed.

R. J Ingraham, City Counselor, and J. J. Williams, Associate City Counselor, for appellant.

(1) A city is not liable merely because a sidewalk is defective. To create liability it must be not reasonably safe. Blake v St. Louis, 40 Mo. 569; Bonine v. Richmond, 75 Mo. 437; Robertson v. Railway, 152 Mo. 389; Carvin v. St. Louis, 151 Mo. 334; Warren v Independence, 153 Mo. 593; Smith v. Brunswick, 61 Mo.App. 578; Wallis v. Westport, 82 Mo.App. 522. (2) The city is not liable merely because ice on its walk is rough and uneven. Reno v. St. Joseph, 169 Mo. 656. (3) Plaintiff's instructions numbered 1 and 2 state a false ground of recovery, and are not cured by defendant's instructions. Welsh v. Railway, 20 Mo.App. 477; Herbert v. Mound City S. and S. Co., 90 Mo.App. 305; White v. Ins. Co., 93 Mo.App. 282; Baer et al. v. Lutter, 85 Mo.App. 317; Dunham et al. v. Harling et al., 69 Mo.App. 509. (4) Plaintiff's instruction number 3 is erroneous. Cook v. Railway, 94 Mo.App. 417. (5) Plaintiff's instruction number 4 is erroneous. Bank v. Murdock et al., 62 Mo. 74. (6) The demurrer to the evidence should have been sustained. Reno case, supra.

Henry J. Latshaw, Jr., for respondent.

(1) For the sake of the argument respondent could admit that its instruction number 1, did tell the jury to find for plaintiff under conditions which failed to include the reasonable safety of the sidewalk, and still under the law, appellant can not complain. Blackwell v. Hill et al., 76 Mo.App. 46; Squires v. Kansas City, 75 S.W. 194; Lesser v. Railway, 85 Mo.App. 326; Owens v Railway, 95 Mo. 169; Edwards v. Railway, 94 Mo.App. 36; Knight v. Sadtler Co., 91 Mo.App. 574; Gordon v. Burris, 153 Mo. 223; Grace v. Railway, 156 Mo. 295.

OPINION

BROADDUS, J.

This suit was begun in the circuit court of Jackson county and taken by change of venue to Lafayette county where it was tried and appealed to this court.

The plaintiff sues for damages claimed to have been sustained by reason of a fall caused by the slippery condition of defendant's sidewalk. The evidence developed that plaintiff slipped and fell on the east side of Cherry street about twenty feet north of the corner of Thirteenth street, on January 11, 1901. Prior to the time of her fall and injury there had been a fall of snow and sleet which the plaintiff's evidence tended to show had mostly disappeared. But this was controverted by the defendant. However, there was evidence to the effect that the place where plaintiff slipped and fell, ice had formed from water freezing that had flowed down a spout leading to the roof of an adjacent house; that it formed to the extent of from two to six inches thick, about three feet wide beginning at the inside edge of the walk and extending diagonally across to the outside of it, and that it was rough and dented with abrupt edges. The testimony of plaintiff and her witnesses was that while passing along she came to the place described and when she stepped upon the ice so formed on the sidewalk her foot slipped and she fell and was injured. It was shown that the sidewalk was in the condition stated, more or less, for ten days previous to the accident.

There was a verdict for the plaintiff and defendant appealed.

It is one of defendant's contentions that the court should have sustained its demurrer to the evidence; but the facts stated plainly show that it was a case for the jury. It is the law that a city is not liable for the slippery condition of its streets caused by ice upon its sidewalks, unless it be that "the ice is so rough and uneven, or so rounded up, or at such an incline, as to make it an obstruction and to cause it to be unsafe for travel with the exercise of ordinary care." Reno v. St. Joseph, 169 Mo. 642, 70 S.W. 123. It was therefore a question for the jury under the evidence to determine whether the sidewalk under the condition described constituted an obstruction such as to render it unsafe for travel. In Reedy v. St. Louis, 161 Mo. 523, 61 S.W. 859, it was held: "Where the sidewalk is in fact rendered dangerous to pedestrians because of slippery ice formed from the accidental or incidental discharge of water, such not being the prevalent condition of sidewalks at the time, it is the duty of the city to cause the danger to be removed within a reasonable time after it has notice or by the exercise of ordinary care could have discovered the dangerous condition."

Instruction number one is objected to by defendant for the alleged reason that it, "authorized a recovery by plaintiff without regard to whether or not the ice made an obstruction or had any effect at all on the safety of the sidewalk. If only rough and uneven ice was a proximate cause of the fall the jury were told that plaintiff should recover." Said instruction is as follows: "The court instructs the jury if you find and believe from the evidence that at the time plaintiff slipped and fell the sidewalk at the point where she slipped and fell was covered with rough and uneven ice, and that said rough and uneven ice, if any, had remained upon said sidewalk at said point for a sufficient long time prior to the time plaintiff slipped and fell for the defendant by the exercise of ordinary care and caution to have known of the presence of said ice, if any, and in time for defendant to have had a reasonable opportunity to have removed said ice, or to have caused the same to be removed; and if you further find and believe from the evidence that said ice, if any, was a direct and...