Robison v. Kansas City

• Decision Date: 22 December 1915
• Docket Number: No. 17037.,No. 17038.,17037.,17038.
• Parties: ROBISON v. KANSAS CITY et al.
• Court: Missouri Supreme Court

181 S.W. 1004

ROBISON v. KANSAS CITY et al.

No. 17037.

No. 17038.

Supreme Court of Missouri.

December 22, 1915.

In Banc. Appeal from Circuit Court, Jackson County; J. A. Guthrie, Judge.

Action by Elizabeth Robison against Kansas City and the Parker-Washington Company. Verdict for defendants, and from judgment setting it aside, and granting new trial, they appeal. Affirmed, and cause remanded.

See, also, 179 Mo. App. 211, 166 S. W. 343.

The following is the map referred to in the opinion:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A. F. Evans and Hunt C. Moore, both 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.

WALKER, J.

This is an action brought in the circuit court of Jackson county by plaintiff for damages on account of personal injuries alleged by her to have been received through the negligence of the defendants. Upon a trial there was a verdict for defendants, and from an order setting the same aside, the defendants appeal.

Plaintiff alleges that in November, 1906, she sustained the injuries of which she complains from falling into an excavation in the nighttime at the intersection of Brighton avenue and Twenty-Third street in Kansas City. The course of Brighton avenue is north and south; that of Twenty-Third street, which crosses it, east and west. Defendants' map, prefixed to this opinion, will aid in understanding the location of the different points referred to in this statement of facts.

At the time of the accident there was a grocery store kept by one Lauderdale on the southeast corner of the intersection of the streets named. Prior to that time Kansas City, by a contract, had caused Brighton avenue from Twenty-Third street south to Twenty-Fourth street to be graded to the full width of the street, which was 60 feet. Under this contract the square formed by the intersection of the streets was partially graded so as to afford an approach for vehicles into Brighton avenue from Twenty-Third street. Subsequently the city entered into a contract with its codefendant, the Parker-Washington Company, to grade Brighton avenue from Twenty-Third street north to Twentieth street. This contract was in conformity with an ordinance of said city authorizing the grading of said avenue. One of the provisions of the contract was that:

"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 and in the same manner as the roadway grading."

At the time of this accident there was a subsisting contract between Kansas City and an electric light company to maintain during each night an arc light at the intersection of Brighton avenue and Twenty-Third street.

An ordinance in regard to lights and barriers in force in said city at the time plaintiff claims to have received her injuries is as follows:

"Sec. 861. Lights and Barriers.—Every person who shall for any purpose, make or cause to be made any excavation in, upon, under, near or adjoining any street, avenue, sidewalk, alley or other public place, and shall leave any part or portion thereof open, or shall leave any part or portion thereof obstructed with rubbish, building or other material, during the nighttime, shall cause the same to be enclosed with good, substantial and sufficient barriers not less than three feet high, and shall also place a red light at each end thereof in such a position as to shed its light upon such excavation or obstruction, and shall keep such lights burning from sunset to sunrise.

"Sec. 862. Same.—Every person who shall in any manner, render or cause to be dangerous any street, avenue, sidewalk, alley or other public place, shall, from sunset to sunrise, provide and properly place such barriers and lights around such dangerous place as are in the preceding section required."

At the time of the alleged injury plaintiff lived on Twenty-Second street just east of Brighton avenue. On the night of November 17th, at about 8 o'clock, she and her husband after going to one or two other places of business in the neighborhood, went north on the west side of Brighton avenue to Twenty-Third street and, crossing over, entered Lauderdale's store, where they did some trading. It was quite a grade up to the store, from which the ground slanted off toward Brighton avenue. When they came out of the store and started home the only light was that which shone out of the window at the front of the store building, which was westward and not in the direction of the intersection of Brighton avenue and Twenty-Third street. Plaintiff's husband preceded her on their way homeward, and she thought she was following him down the pathway which led across the intersection of the streets, but in the darkness she veered a little to the right and fell over the embankment at the intersection of said streets at the point shown on the map, and received the injuries of which she makes complaint. At the time there were no barriers or railings around the excavation and no lights of any kind. Plaintiff, although she lived in the neighborhood, had not been to Lauderdale's store since the grading began, nor could she see from her home up to the store. Some time before the accident an arc light had been erected under a contract with the city near the southwest corner of Brighton avenue and Twenty-Third street, but, according to the testimony of several witnesses, it was not burning on the night of the accident, nor had it been for three or four nights prior thereto. The excavation into which the plaintiff fell was made by the defendant Parker-Washington Company under the contract with its codefendant, the said city, and during the progress of the work the city engineer was frequently on the ground and directed the manner in which the grading was to be done. The work on Brighton avenue under this contract and the approaches on Twenty-Third street where the same intersects with Brighton avenue were not completed until after plaintiff's injury.

Defendants' separate answers tender the same issue; their appeals, therefore, will be considered jointly.

I. Contributory Negligence.—The first contention is that plaintiff was guilty of contributory negligence. In support thereof defendants cite the following cases: Welch v. McGowan, 262 Mo. 709, 172 S. W. 18; Craine v. Metropolitan St. Ry. Co., 246 Mo. 393, 152 S. W. 24; Woodson v. Metropolitan St. Ry. Co., 224 Mo. 685, 123 S. W. 820, 30 L. R. A. (N. S.) 931, 20 Ann. Cas. 1039; Kaiser v. St. Louis, 185 Mo. 366, 84 S. W. 19; Brady v. St. Joseph, 167 Mo....