Reed v. City of St. Josefx.

• Decision Date: 01 December 1924
• Docket Number: No. 1514-5.,1514-5.
• Citation: 266 S.W. 330
• Parties: REED v. CITY OF ST. JOSEFX.
• Court: Missouri Court of Appeals

266 S.W. 330

REED v. CITY OF ST. JOSEFX.

No. 1514-5.

Kansas City Court of Appeals. Missouri.

December 1, 1924.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by John Reed against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Lewis C. Gabbert, J. V. Gaddy, and W. J. Sherwood, all of St. Joseph, for appellant. 0. E. Shultz and F. H. Miller, both of St. Joseph, for respondent.

ARNOLD, J.

This action in damages for personal injuries, alleged to have been received by plaintiff on June 21, 1923, is based on certain alleged defective Conditions of a. public thoroughfare and approach to a bridge in defendant city.

The facts show that Lake avenue and Alabama street, in the city of St. Joseph, Mo., are intersecting public thoroughfares maintained by defendant; that at or near said intersection is a bridge spanning a small creek, known as Brown's branch. The south approach to said bridge slopes for a distance of about 15 feet, and is of concrete construction. The said slope from the bridge proper is rather precipitous; being a drop of 3 or 4 feet in its full length. Lake avenue runs north and south, and is paved; Alabama street extends east and west, and is paved west from the approach to the bridge, but is not paved from the east line of Lake avenue, and is a dirt road. At the southeast corner of the intersection, and built almost flush with the two streets, is a store building with a porch, thus rendering the turn into Alabama street very sharp. It appears the approach was made necessary in order to afford a crossing over Brown's branch, on each side of which there was an embankment to prevent flood waters from overflowing adjacent property.

Plaintiff, a teamster owning his own team, was employed at the time of the accident by one Fuqua, a manufacturer or dealer in ice, and was engaged in delivering ice in the vicinity of the bridge above mentioned, and was using for that purpose his own team and a spring wagon belonging to Fuqua.

The petition alleges that while plaintiff was riding in the said wagon, drawn by his team, going south on Lake avenue, on his way home, two blocks south and two blocks east of the intersection of Lake avenue and Alabama street, he crossed the bridge over Brown's branch, applied the brake to his wagon, and turned east into Alabama street, a very sharp turn; that there was a hole about 10 to 12 inches deep in the soil at the edge of the concrete, possibly two-thirds of the way down the approach, worn therein by wagons and other vehicles, as the wheels thereof dropped from the edge of the concrete onto the soil; that when the wheels of his wagon, so turning east into Alabama street, passed from the pavement onto the dirt, the right, wheel thereof dropped into said hole, tilted the wagon, and plaintiff was thrown out, sustaining Certain injuries which are enumerated. Plaintiff was alone at the time, excepting that one Joe Hurd, who was not injured, was riding with him on the driver's seat.

The petition alleges there was

"a defective and dangerous street and walk and public thoroughfare, which defective and dangerous condition was located as follows: The south concrete or paved approach to the bridge situated in said intersection, and which bridge spans a creek at that point, and a hole or depression at the east side of said paved approach, the hole or depression being in the dirt roadway at the point where the dirt roadway and east side of said approach meet; that the defect consisted of the hole or depression located as aforesaid, and the precipitousness of the grade of said paved approach, and the fact that the roadway of Alabama street on the south side of the creek, and east from said intersection, is narrow, both at the intersection and east on said street, and so situated in reference to the bridge that vehicles going east on Alabama street, after crossing said bridge, must make a short turn upon said precipitous approach immediately after leaving the bridge proper, and pass over said hole or depression. That by reason of the precipitousness of the paved approach and the hole or depression located as aforesaid, and by reason of the necessity of vehicles going east on Alabama street making a short turn upon said approach immediately after leaving the bridge proper, that said intersection and highway was rendered dangerous, and not reasonably safe for travel by horse-drawn vehicles, because they were likely, in making said short turn, so situated and so constructed, to upset or throw persons therefrom while riding in the same The charge of negligence is:

"That the defendant city knew, or should have known by the exercise of ordinary care and diligence, that the street at said point was in a defective and dangerous condition, and that it rendered said street not reasonably safe to travel thereon in time to have repaired the same, by the exercise of ordinary care."

The answer is a general denial and a pies of contributory negligence. Upon the pleadings thus made, the cause went to trial to a jury. Verdict was for plaintiff in the sum of $400. Motions for new trial and in arrest were ineffectual, and defendant appeals.

The first charge of error is directed against plaintiff's instruction No. 1, and it is insisted the first paragraph of said instruction tells the jury that it was the duty of the city to keep its streets in a reasonably safe condition for vehicles traveling thereon. Said paragraph reads:

"The court instructs the jury that it was the duty of defendant city to keep its streets in a reasonably safe condition for the use of vehicles traveling thereon, and to exercise ordinary care and supervision over the same for this purpose; and, if defendant fails to keep its streets in such condition, after it is known, or by the exercise of ordinary care and diligence might have known, of the unsafe condition thereof, if you find it was unsafe in time to repair the...