Sindlinger v. City of Kansas City

• Decision Date: 18 December 1894
• Citation: 126 Mo. 315,28 S.W. 857
• Parties: SINDLINGER v. CITY OF KANSAS CITY.
• Court: Missouri Supreme Court

28 S.W. 857

126 Mo. 315

SINDLINGER v. CITY OF KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

ACTION AGAINST CITY — DEFECTS IN BRIDGE — CONTRIBUTORY NEGLIGENCE.

1. A pedestrian is not excused from exercising ordinary care to avoid injury from defects in the streets of a city by the city's negligence in tolerating such defects.

2. In a personal injury suit, the question of plaintiff's negligence is for the court when the evidence admits of no other inference than that plaintiff was negligent, and that such negligence was the proximate cause of his injury.

3. Where a man ran a race by moonlight across a foot bridge, and threw himself violently against a railing guarding a stairway at one end of the bridge, which he had long known to be there, and could then see, and the railing broke, and he fell, he cannot recover for the resulting injury.

Appeal from circuit court, Lafayette county; Richard Field, Judge.

Action by Daniel Oscar Sindlinger, formerly Daniel Oscar Frenzel, against Kansas City, for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

F. F. Rozzelle, F. P. Walsh, John S. Blackwell, and J. D. Shewalter, for appellant. E. C. Mapledoram, W. M. Payne, and Wm. Aull, for respondent.

GANTT, P. J.

This is an action for damages for personal injuries occasioned by a fall from the end of the Wyoming street viaduct in Kansas City. Plaintiff sued the city, and recovered judgment in the circuit court for $6,800, and, if plaintiff is entitled to recover at all, the verdict is not excessive. The accident occurred on the 20th day of July, 1891. At the time in question there was a bridge or viaduct, beginning at the corner of Twelfth and Wyoming streets, and extending over the private property and railroad tracks of the Union Pacific and Missouri Pacific Railroad Companies to St. Louis avenue, on a line with what would be Wyoming street if Wyoming street were extended through the yards of the railway companies. The facts developed at the trial show that in the fall of 1888 a stairway and railing were constructed at each end of said bridge or viaduct; that the railing and stairways were constructed by skilled and competent workmen; that the material used in its construction was such as is generally used in all similar bridge construction, and was composed of sound material, selected for the purpose; that the city, through its authorized officers, from the time of the construction of said railing and viaduct up to and including the very month in which this accident occurred, kept up a regular inspection of said viaduct and the railings and appurtenances thereto; that the viaduct or bridge and the railing at the north end were inspected on the 3d of July, 1891, 17 days prior to the time of the happening of the accident, and were then found to be sound, and in good condition. The evidence tending to show a defective condition of the railing prior to the time of the accident in question was the statement of a witness, whose deposition was read to the jury, to the effect that about three weeks prior to the accident he had leaned against the railing, and that it shook enough to warn him to get away, and that he did not think it was safe, but he made no other examination of it. The evidence on the part of plaintiff to show a faulty construction of the railing at the point where the accident happened was that the railing was constructed in the following manner: Four feet of the viaduct, which was 19 feet wide, was taken up with the entrance to the stairway, leaving the space between the inside of the stairway and the railing on the opposite side of the viaduct 15 feet wide. One side of the stairway was supported by the column that supported the viaduct. The other side of the stairway was supported by a post extending from the ground up to and against the viaduct a distance of three feet and a half above the floor of the viaduct. On the opposite side of the viaduct there was a column extending the same height above the floor of the viaduct. Half way between the post at the head of the stairway and the opposite side of the viaduct there was another post, 4×4 inches in dimensions. The distance between the posts was, therefore, 7 feet. The end posts did not give way, and there is, therefore, no question as to their being securely fastened. The center post was toe-nailed with 20-penny nails to the floor of the viaduct, and braced by a block sawed out to fit around the post, and spiked to the floor of the viaduct. On top of these posts rested a railing 2×6 inches, spiked to all three of the posts. On the inside of the posts, and immediately below and adjoining the top railing, was another railing, 2×6 inches, spiked to the inside of all three of the posts. The top railings were also spiked to the under railing, and both railings were joined at the center post, and mitered together on the top and sides of the posts. All the competent testimony in the case shows that the railing in question was originally properly and securely constructed, and was safe for persons using the viaduct in the ordinary modes of travel. Mr. Drake, a witness for plaintiff, who was at the scene of the accident, testified that he examined the tops of the posts next morning, and they were checked and decayed. Helm, who was with Drake, says you could not call the flecks in the posts rot, but it would not be as strong as new timber. This was all that tended to show negligence in maintaining the railing after it was built.

The evidence shows that on the night in question the plaintiff, with a companion, went upon this viaduct, which was about 18 feet above the ground, and about 850 in length, and was only used by foot passengers; that it had been drizzling rain, and was somewhat cloudy, but that there was a full moon, which showed at intervals through the breaking clouds. The testimony of a number of witnesses, which was only contradicted by the plaintiff himself, was to the effect that the plaintiff, with a number of other young men, was drinking beer from a bucket in the rear of the saloon in the immediate vicinity of the viaduct shortly before the accident occurred, and that plaintiff was more or less under the influence of liquor at the time of the happening of the accident. The testimony of plaintiff's companion, James Baine, who was...