Riley v. Kansas City

• Decision Date: 05 February 1912
• Citation: 143 S.W. 541,161 Mo.App. 290
• Parties: FRANCIS RILEY, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

143 S.W. 541

161 Mo.App. 290

FRANCIS RILEY, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

February 5, 1912

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

John G Park, James W. Garner and Francis M. Hayward for appellant.

(1) Defendant's demurrer to the evidence should have been sustained because there was no evidence that the city constructed the meter into which plaintiff fell and there is no evidence that the city had actual knowledge of the alleged defect or that it had existed for such a length of time that it should have known of it so that it could have repaired it. Maus v. Springfield, 101 Mo. 613; Badgley v. St Louis, 149 Mo. 122; Young v. Webb City, 150 Mo 333; Baustian v. Young, 152 Mo. 317; Richardson v. Marceline, 73 Mo.App. 360; Ballard v. Kansas City, 126 Mo.App. 541. (2) The court erred in refusing instruction 2 asked by appellant. Wren v. Railway, 125 Mo.App. 604; Calvin v. Reid, 18 Mo.App. 115; Gray v. McDonald, 28 Mo.App. 492; Murray v. Transit Co., 176 Mo. 183.

Reed, Yates, Mastin & Harvey for respondent.

(1) Where the defect in a water meter box results from its original construction no notice of its previous unsafe condition is required. All a pedestrian is required to show in order to recover for an injury received by reason of such faulty construction is that the meter box was in an unsafe condition. Carvin v. City of St. Louis, 151 Mo. 334. (2) It is the duty of the city to keep the entire space between the curb and lot line on a public street in a reasonably sale condition. Coffey v. City of Carthage, 186 Mo. 573.

OPINION

ELLISON, J.

Plaintiff's action is for damages resulting from an injury received in a street of defendant which he alleges was negligently maintained by defendant. He recovered judgment in the trial court.

It appears that plaintiff, with other boys, had been practicing at football on 38th street, in Kansas City. One of them lost a pencil and plaintiff (with others) was looking for it. While plaintiff was so engaged, walking along in rather a stooped position, he stepped upon a negligently constructed metal covering of a water meter, located in the parkway between the curbing and property line, which turned in such way as to throw him astride of it, causing severe and painful injury. It is not disputed that it was the duty of defendant to keep the space between the curb and the property line in a reasonably safe condition. [Coffey v. Carthage, 186 Mo. 573, 85 S.W. 532.]

The first of the two points made against the judgment is that it was not shown the city put in the water meter, and if not put in by the city that it had notice of the defect in the covering. Plaintiff concedes there is an absence of evidence in the record that the city put in the water meter, but he says that at the trial his counsel spoke of being through with the evidence in his behalf except a witness from the city hall, meaning a witness to prove the city constructed the meter box. Whereupon counsel for the defendant said this: "I will say this: Of course, I am not familiar with the fact; but, I have called up, and if the city places this meter box in there I will admit it,--or, he can introduce the evidence out of order."

"The Court: The only purpose of that testimony is, to show that the city put this meter box in?"

"Plaintiff's Counsel: Yes."

Though...