Robinson v. Kansas City

Decision Date06 April 1914
Docket NumberNo. 10981.,10981.
Citation179 Mo. App. 211,166 S.W. 343
PartiesROBINSON v. KANSAS CITY et al.
CourtMissouri Court of Appeals

MUNICIPAL CORPORATIONS (§ 759)—TORTS— DEFECTS IN STREETS—PARTIALLY IMPROVED STREET.

Where a strip in the center of a platted street had been cut down to the established grade, leaving the remainder thereof about six feet above the grade, the city extended no invitation to the public to use that portion which had not been graded, and therefore was not liable for injuries received by one who was coming down a path from the top of the bank to the graded portion of the street.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by J. Q. Robinson against Kansas City and another. From an order sustaining plaintiff's motion to set aside an involuntary nonsuit after the court sustained demurrers to the evidence, and granting a new trial, the defendants appeal. Reversed.

A. F. Evans, Jas. W. Garner, and Hunt C. Moore, all of Kansas City, for appellant Kansas City. Ball & Ryland, of Kansas City, for appellant Parker-Washington Co. Botsford, Deatherage & Creason, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages he sustained in consequence of personal injuries to his wife which, he alleges, were caused by negligence of defendants in failing to guard an embankment and excavation in one of the public streets of Kansas City which had been recently graded by the defendant the Parker-Washington Company under contract with the defendant city. Separate answers were filed; each containing a general denial and a plea of contributory negligence. At the close of plaintiff's evidence the court sustained demurrers to the evidence offered by the respective defendants, whereupon plaintiff took an involuntary nonsuit, and afterward the court sustained his motion to set it aside and ordered a new trial. Both defendants appealed.

The injury occurred about 8 o'clock p. m November 3, 1906, at the intersection of Brighton avenue and Twenty-Third street, a locality in a remote residence district of the city. Brighton avenue runs north and south, Twenty-Third street east and west; the platted width of the latter street being 60 feet. There were numerous residences in the vicinity; but neither street had been graded until several months before the date of the injury, when the city had caused Brighton avenue to be graded to the established grade from Twenty-Third street south. The established grade at the intersection was 6 feet below the natural surface, and the contractor had extended the grading far enough into the intersection to enable him to cut a narrow approach in Twenty-Third street to the crossing. Shortly after this work was done the city let the contract to the Parker-Washington Company to grade Brighton avenue north from Twenty-Third to Twentieth street to the established grade. The contract contained the provision: "Approaches to all intersecting streets and alleys shall be graded under this contract whenever and in whatever manner indicated by the engineer, and they shall be measured and estimated as a part of and in the same manner as the roadway grading." This contract had been nearly, if not entirely, performed by the contractor on the date in question, and under the direction of the engineer the cut for the approaches on Twenty-Third street had been widened to about 20 feet, and was in the middle of that street. South of this cut the ground was not graded, and from the southeast corner of the intersection of the east cut with Brighton avenue (which had been graded to its full width) a strip of ground 15 to 20 feet wide had been left in Twenty-Third street. This strip, which was...

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