Scanlan v. Kansas City, Mo.
| Decision Date | 29 April 1929 |
| Docket Number | No. 16617.,16617. |
| Citation | 19 S.W.2d 522 |
| Parties | MARY N. SCANLAN, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
F.M. Kennard, R.M. Sheppard and Bert S. Kimbrell for respondent.
John T. Barker, Marcy K. Brown, Jr., and Arthur R. Wolfe for appellant.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2500. Defendant has appealed.
The facts show that plaintiff was injured on May 27, 1925, by tripping over an iron band located at the west curb of an alley between Main and Walnut streets and on the north side of 12th street, an east and west street in Kansas City. For a week or ten days prior to the time plaintiff fell the sidewalk at that place was in the following condition: In constructing the cement sidewalk at the alley there had been an iron band embedded in the concrete of the walk about four inches wide and a quarter of an inch thick running around the corner and west on 12th street. This band was for the purpose of preventing wear upon the concrete by vehicles using the alley and turning at this point. The top of the band was even with the surface of the concrete sidewalk. At the time it was placed it was held in place by prongs embedded in the concrete. However, vehicles using the alley had run over the edge of the sidewalk at the place in question causing the concrete at the band to be worn away and the prongs to become loose and the band to be away from the sidewalk in the alley for a distance of about half an inch. The concrete had been worn down to such an extent that at the juncture of the alley and the street it was practically level with the pavement of the street and alley.
The sidewalk was about ten feet in width and beginning with the corner made by the intersection of the alley and street the concrete of the sidewalk had been worn away for half of the width of the walk and the band protruded above the worn part of the walk from an inch to an inch and a half. Between the center of the sidewalk and the building at the north the concrete in the sidewalk was not worn and the band was in place and was flush with the top of the walk. The edge of the sidewalk was worn down along 12th street west of the alley for a distance of eighteen inches or two feet and the iron band was broken loose from the sidewalk along 12th street for a distance of six feet west of the corner of the alley. The top of the sidewalk in its original condition was four or five inches above the pavement of the alley.
Plaintiff fell about 1:45 P.M., of the day in question. Sometime prior to ten A.M., of the morning of the day in question a truck came around the corner of the alley and apparently broke the band near the corner of the alley and bent it up so that it extended two or three inches above the surface of the sidewalk. The bending process began about the center of the sidewalk north and south. Plaintiff testified that after she fell she looked at the place and found that she had fallen near the outer edge of the sidewalk; that the walk was worn back from the band at this point three or four inches. She was unable to tell how deep the worn part of the walk was at this place. She testified that when she was ready to step down into the alley her foot slipped and the heel of her left foot caught on the iron band as she fell pulling off her slipper which was thereafter found wedged between the band and the sidewalk. An employee of a neighboring store twenty minutes or half an hour after plaintiff fell sawed off with a hack saw that part of the iron band that was loose and bent.
Other material facts necessary to be stated in connection with the various points raised by the defendant will be stated in connection with our discussion of those points.
Defendant first insists that the court erred in refusing to sustain its demurrer to the evidence for the reason that plaintiff was guilty of contributory negligence as a matter of law. In this connection defendant argues that when plaintiff fell it was broad daylight; that she was walking toward the intersection of an alley which she knew was there; that she was carrying a bundle about a foot square and taking her time approaching the scene of the fall; that there was nothing in front of her to obstruct her view; that she did not look down where she was stepping, giving as her reason therefor, that she "didn't have time;" that she did not look when she knew she would be required to take a step down into the alley at this place; that had she looked she would have seen this defect which was "glaringly apparent."
In this connection plaintiff testified that she had never been over this sidewalk before; that she was walking along "in a casual way, working my way through the crowd;" that the street was crowded with people going in both directions; that there were some people passing her from behind on both sides; that she was on the right side of the sidewalk going east, but was not on the edge; that the street was dry; that as she approached the place where she fell she saw the alley in front of her and knew that it was an alley by reason of the open space between the buildings; that when she would step downstairs or take a four or five inch step-off "she ordinarily would look;" that she did not look at this time "because I had to mosey my way through the crowd;" "I had to see that I was going through, people wouldn't bump into me;" that there were people in front of her but she did not know how far away they were.
The witness was asked whether she looked down as she stepped from the sidewalk into the alley, and she answered, "I didn't have time;" that she was not going so fast that she did not have time to look: — (Here counsel for the defendant interrupted the answer of the witness, and the question was never answered, by asking another question as follows): The witness testified that if she had known of the presence of the disintegrated concrete of the sidewalk and the iron band that she would have looked and could have seen them. "If I was looking for a spot like that, sure I could."
We cannot say that plaintiff was guilty of contributory negligence as a matter of law in not looking down at the exact place where she was placing her steps. She knew that there was an alley present and had that in mind, but testified that the street was crowded and that her attention was upon getting through the people and that she was required to walk so that they would not "bump into me." Evidently her attention was somewhat on the matter of keeping out of the way of the other people and under the circumstances we would not be justified in going to the extent of declaring plaintiff guilty of contributory negligence as a matter of law in not looking down immediately before her when she came to the alley. [Hinton v. City of St. Joseph, 282 S.W. 1056; Smith v. Kansas City, 184 S.W. 82; Huffman v. City of Hannibal, 287 S.W. 848; Shuff v. Kansas City, 257 S.W. 844; Bianchetti v. Luce, 2 S.W. (2d) 129.]
We have examined the cases cited by the defendant and find them not in point. Most of them are discussed and differentiated in the case of Wyckoff v. City of Cameron, 9 S.W. (2d) 872, 874, 875, and it is unnecessary for us to enter into any extended discussion of them. The question of contributory negligence is a matter that usually must be determined from the peculiar circumstances of each case and authorities cited in connection with the particular case are only valuable in declaring general propositions of law. However, we might say that there is considerable dispute between the parties as to whether there is conflict between the case of Smith v. Kansas City supra, and Ryan v. Kansas City, 232 Mo. 471. It is quite apparent that there is no conflict between these two cases, but each one turned upon its own peculiar facts.
It is next contended that the court should have sustained defendant's demurrer to the evidence for the reason that there was no evidence of any actual notice of the presence of the bent up or twisted condition of the iron band, and there was not sufficient time elapsing from the time the truck ran over it, causing its twisted and bent up condition, to the time plaintiff fell to constitute constructive notice to the defendant.
The evidence shows that the iron band had become loosened and protruded somewhat above the worn part of the sidewalk, by reason of the disintegration of the walk caused by traffic running over it, for two weeks prior to the time plaintiff fell, and there is no contention that a period of two weeks was not sufficient time to give defendant constructive notice of that condition in time, by the exercise of ordinary care, to have remedied the situation. There would be no difficulty in disposing of this contention against the defendant if it were not for the peculiar way in which the case is pleaded by plaintiff. Had the petition been founded upon the theory that this situation that had existed for two weeks before the truck bent the band upward constituted negligence and resulted in the twisted and bent up condition the band was in at the time plaintiff fell, then we would have been compelled to hold that the defect and the circumstances were such that the jury could find that the city was bound to take notice that some such circumstance as happened in this case might take place to cause the band to become twisted and bent upward or otherwise made more dangerous even than it had been for the two weeks. [Wasson v. City of Sedalia, 236 S.W. 399.]
However, the petition and plaintiff's instructions submit squarely to the jury constructive notice to the city of the bent up and twisted condition of the iron band and...
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