Robinson v. Kansas City
| Citation | 166 S.W. 343,179 Mo.App. 211 |
| Parties | JOHN Q. ROBINSON, Respondent, v. KANSAS CITY, MISSOURI, and THE PARKER-WASHINGTON COMPANY, Appellants |
| Decision Date | 06 April 1914 |
| Court | Court of Appeals of Kansas |
Appeal from the Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
REVERSED.
Judgment reversed.
A. F Evans, Jas. W. Garner, Hunt C. Moore and Ball & Ryland for appellants.
Botsford Deatherage & Creason for respondent.
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 eight 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 sixty 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 six 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 twenty 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 fifteen to twenty feet wide had been left in Twenty-third street. This strip, which was on a level with the adjoining property, ended at Brighton avenue in an abrupt bank six feet high and was bounded on the north by a bank facing the cut in Twenty-third street. There was a building occupied by a grocer at the southeast corner of the platted intersection. It fronted on Brighton avenue and had been built on a surface grade. The grading of the avenue left its first floor six feet higher than the street and between the north wall and the cut in Twenty-third street was the strip of untouched ground we have described, which, of course, was within the bounds of that street as...
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