Ross v. City of St. Joseph

• Decision Date: 02 April 1923
• Docket Number: No. 14648.,14648.
• Citation: 250 S.W. 625
• Parties: ROSS v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

250 S.W. 625

ROSS v. CITY OF ST. JOSEPH.

No. 14648.

Kansas City Court of Appeals. Missouri.

April 2, 1923.

Error to Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Hanna Ross against the City of St. Joseph. Judgment for plaintiff, and defendant brings error. Affirmed.

Alva F. Lindsay, Herman Hess, and H. L. Kavanaugh, all of St. Joseph, for plaintiff in error.

Sherman, Stigall & Kranitz, of St. Joseph, for defendant in error.

THIMBLE, P. J.

Mrs. Ross, in proceeding along the sidewalk along Illinois avenue, in St. Joseph, Mo., a street of much travel, vehicular as well as by pedestrians, stepped into a defective place in the sidewalk and was thrown down, receiving an impacted fracture of the left wrist, leaving her hand permanently stiff, with a deformity or ridge across the back of her hand, and the wrist bone projecting out of its normal position. She brought suit against the city, and recovered a verdict and judgment for $3,000, to review which the city brought this writ of error. For convenience we shall designate the parties as in the trial, and not as they now appear in this reviewing case.

The petition alleged that plaintiff was injured on January 13, 1921, as she was Proceeding along the "sidewalk on the north side of Illinois avenue, a short distance west of where said Illinois avenue intersects Lake avenue, to wit, about 95 feet west of the curb line of Lake avenue, and. near the east property line of the property numbered 407 Illinois avenue," where she was thrown down by reason of a defect in said sidewalk, "which said defect consisted of rough and uneven surface of said brick sidewalk, occasioned by said brick sidewalk being broken, loosened, and out of repair to such an extent that certain bricks thereof protruded upward with sharp corners and projections, while other bricks once laid. In said sidewalk were out and gone, leaving a hole of the depth of three or four inches in said sidewalk at said place, and contiguous to the roughened and uneven surface herein referred to," whereby said sidewalk was rendered dangerous and unsafe.

It is claimed that the defendant's demurrer to the evidence should have been sustained because the notice, the petition, and the instruction embodying and submitting plaintiff's case present a different situation from that which the evidence shows existed. The petition and instruction seem to present the same situation, and we must assume that the notice corresponded to them, since no complaint is made of a want of sufficient notice, and we are unable to find where the notice is anywhere preserved in the record. The evidence does not present a different situation, but presents the same situation a little more...