Smith v. City of Marceline

• Decision Date: 03 December 1917
• Docket Number: No. 12623.,12623.
• Citation: 198 S.W. 1116
• Parties: SMITH v. CITY OF MARCELINE.
• Court: Missouri Court of Appeals

198 S.W. 1116

SMITH v. CITY OF MARCELINE.

No. 12623.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published."

Action by Annie Smith against the City of Marceline. From a judgment for plaintiff defendant appeals. Judgment reversed, and cause remanded.

H. J. West, of Brookfield, and John C. Crawley, of Marceline, for appellant. C. M. Kendrick, of Marceline, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injuries received while walking along one of defendant's streets which she charges was negligently kept. She recovered judgment in the circuit court.

The place where she was injured was where the street crosses a ravine or ditch which is about seven feet deep and three feet wide at the bottom with sloping banks. The street is carried across the ditch by means of a fill of earth and a culvert over the central part through which the water flowed. The street was practically unimproved except by a roadway, and this passed over the fill and culvert, which was enough wider than the roadway to leave a "margin of earth" on either side which was grown in weeds and grass.

Plaintiff, in company with her daughter, 16 years of age, at about dark, was crossing over the ditch along this "margin," when she stepped in a hole, and was thereby thrown over into the ditch, receiving the injury for which she sues.

There was evidence tending to show that the defendant city knew, or should have known by exercise of proper diligence, of the defective condition of the crossing. So there was evidence tending to show that plaintiff knew of the roadway and the crossing and that the fill and culvert were without a railing on the sides. But, considering the entire testimony, we are satisfied that we cannot declare defendant free from negligence, or plaintiff guilty of negligence, as a matter of law, and so we proceed to the complaint made of the instructions.

It is said that instruction No. 1 for plaintiff burdens the city with the duty of insuring the reasonably safe condition of its streets over their entire width, instead of "that part opened and improved for travel." The instruction does contain the expression that it was the city's duty "to keep all its streets and highways in a reasonably safe condition," etc. But that was not intended to mean that all of each street used by the public should be kept in that condition. It was evidently meant that the streets of the city should be kept reasonably safe for...