Rice v. Kansas City
| Decision Date | 01 April 1929 |
| Docket Number | No. 16530.,16530. |
| Citation | 16 S.W.2d 659 |
| Parties | RICE v. KANSAS CITY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Brown Harris, Judge.
"Not to be officially published."
Action by Alice M. Rice against the City of Kansas City. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
John T. Barker, City Counselor, and Marcy K. Brown, Jr., and James R. Sullivan, Asst. City Counselors, all of Kansas City, for appellant.
Malcolm S. Garrard, of Kansas City, for respondent.
This is a personal injury suit brought by plaintiff against the city of Kansas City, Mo., a municipal corporation, and tried in one of the divisions of the circuit court of Jackson county.
The facts in evidence are that on April 2, 1926, plaintiff was crossing the intersection of Twelfth street and Grand avenue in defendant city, at about 5 o'clock p. m., proceeding eastward on the south side of Twelfth street on the crosswalk over Grand avenue. It appears the crosswalk in question is paved with wooden blocks and that there are double lines of intersecting street car tracks on Twelfth street and Grand avenue; that at a point in said crosswalk about 15 feet west of the east curb of Grand avenue and about 4 to 7 feet east of the east rail of the double street car track on Grand avenue, plaintiff slipped and fell on the edge of a hole or depression in the said block pavement, the edges of which plaintiff alleges were coated with slick, uneven ice, and the hole or depression filled with slush from a recent fall of snow and subsequent alternate thawing and freezing; that the fall produced a fracture of the left hip from which plaintiff has never recovered; that the said hole or depression had sloping sides, steepest at the northwest corner thereof. The testimony shows there is a decline at the surface of the pavement on Grand avenue toward the south.
The evidence is conflicting as to the exact depth of the hole, or depression; the estimates made by plaintiff's witnesses ranging from four to six inches, and from one to one-half inch by defendant's witnesses. Facts about which there is no dispute are that the fall produced an intercapular fracture of the anatomical neck of the left femur; that plaintiff was lifted from the street, carried into a nearby store, and from there removed to the general hospital, where she was treated and where she necessarily remained for several weeks; that, as a permanent result of the injury, plaintiff's left leg is about an inch shorter than its fellow, producing a limp and impediment in walking.
The petition is formal, charges the defendant city is a municipal corporation and as such has sole and exclusive management and control of its streets, alleys, public thoroughfares, and sidewalks within its limits and particularly at the crosswalk involved herein; that it was the duty of defendant at all times to keep the streets, alleys, public thoroughfares, and sidewalks in a condition reasonably safe for persons riding and walking along or over the same, and particularly the crosswalk here in question, being a public highway in defendant city, located within the corporate limits of the same; "that on the 2d of April, 1926, the plaintiff was walking on the crosswalk on the south side of 12th street where it crosses Grand Avenue, when she suddenly and unexpectedly slipped on the slick uneven ice which had accumulated about and in and on the edges of a hole or depression in the aforesaid crosswalk and about fifteen (15) feet west of the east curb of Grand Avenue, and was thrown to the pavement with great force and violence because of the negligence and carelessness of the defendant, its agents, servants and employees, inflicting upon her the hereinafter serious, dangerous and permanent injuries."
The charge of negligence in the petition is as follows: "That defendant, its agents, servants and employees were negligent in this: That they allowed and permitted the snow to melt on, in and about said hole in said crosswalk on the south side of 12th street where it crosses Grand Avenue, one of the busiest corners in Kansas City, and then freeze and then melt and freeze, becoming uneven in ridges and very slick over the surface about and in said hole and to remain in that condition for a period of twenty-four hours or more before the accident, and that pedestrians had walked over the snow and ice while in the melting form, packing the snow and making the ice uneven in and about said hole, when they knew, or by the exercise of ordinary care could have known, the facts and condition of said crosswalk and that it was dangerous and said hole was about five inches deep and the ordinary use of said street thereat was dangerous and not reasonably safe and an obstruction to said crosswalk and liable to cause injuries to pedestrians and plaintiff, in time, or by the exercise of ordinary care could have known, the aforesaid condition in time to have filled said hole or removed said snow from said crosswalk or about said hole making it safe, but negligently failed so to do, thereby causing plaintiff to slip and fall upon said crosswalk, inflicting upon her the following serious, dangerous and permanent injuries," etc.
Then follows allegations as to the nature and extent of the injuries sustained by plaintiff. Further, the petition alleges: "That plaintiff did within ninety days of the occurrence of said accident and injuries give notice in writing to the Mayor of Kansas City, Missouri, and Kansas City, Missouri, stating the place where and the time when such injuries were received and the character and circumstances of the injuries, and that she claimed damages from Kansas City, Missouri."
Damages are asked in the sum of $15,000.
Defendant interposed a demurrer to the petition, and as grounds therefor stated the petition on its face does not state facts sufficient to constitute a cause of action against the defendant. The demurrer was overruled, and defendant filed answer consisting, first, of a general denial, and, as affirmative defense, pleads contributory negligence, in that plaintiff negligently failed to use her eyes and senses in selecting the course she was pursuing, and negligently failed to use her eyes and senses in the use of such course.
The reply is a general denial of each and every allegation of new matter contained in the answer.
The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $5,000. Demurrers offered by defendant at the close of plaintiff's case and at the close of all the evidence were overruled. Likewise, motions for a new trial and in arrest were overruled, and defendant has appealed.
The first point urged is that the demurrers to the evidence were improperly overruled, for the reasons: (1) The evidence shows that the condition of the crosswalk in so far as snow and ice are concerned was general, and the result of alternate thawing and freezing of trampled snow, superinduced by a general snowstorm three days previous, and ending the morning of the day of plaintiff's accident; (2) because of a total lack of evidence from which the jury could say that the walk was unsafe and dangerous; that there is no evidence that the "slight depression" in the crosswalk was the proximate cause of the injury; (3) because the evidence shows plaintiff was guilty of contributory negligence. In the consideration of the demurrers, we must have in mind the established rule that the plaintiff's evidence must be accepted as true, and every reasonable inference to be drawn from defendant's evidence must be resolved in plaintiff's favor.
In discussing defendant's subheading No. 1, it is proper to state there seems to be no dispute between the parties that the condition of snow and ice was general over the city; and it is the law that where such condition exists the city is not liable in damages for an injury resulting from such general condition. We need not enter into a discussion and analysis of the cases cited by defendant on the point, as they are all one way where the facts show no other contributing cause of the injury. In the case at bar there is an alleged contributing cause, to wit, the hole or depression in the crosswalk. With such allegations as are included in the petition here, the trial court may be held to have been warranted in holding, incidentally, that this is not exclusively an "ice" case. It is said in Lueking v. City of Sedalia, 180 Mo. App. 203, loc. cit. 208, 167 S. W. 1152, 1153: ...
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