Smith v. City of St. Joseph

• Citation: 250 S.W. 616
• Decision Date: 30 April 1923
• Docket Number: No. 14680.,14680.
• Parties: SMITH v. CITY OF ST. JOSEPH.
• Court: Court of Appeal of Missouri (US)

250 S.W. 616

SMITH v. CITY OF ST. JOSEPH.

No. 14680.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Buchanan County; Hon. L. A. Vories, Judge.

"Not to be officially published."

Action by Sylvia Smith against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Alva F. Lindsay, Herman Hess, and John Muster, all of St. Joseph, for appellant.

Sam Wilcox, of St. Joseph, for respondent.

TRIMBLE, P. J.

Plaintiff recovered a judgment in the sum of $1,250 damages for a fall upon an icy obstruction on a sidewalk in the city of St. Joseph, whereby her kneecap and back were injured and other minor hurts were sustained. The city has appealed, insisting that its demurrer to the evidence should have been sustained: First, because there was not sufficient evidence to establish defendant's negligence; second, that there was no evidence that the place of plaintiff's fall was on a public sidewalk within the limits of a public street or within the limits of the city itself.

The place of plaintiff's fall was on the sidewalk along the west side of that portion of Second street between Faraon and Jule streets at a point about 120 feet north of the north curb line of Jule street. It occurred somewhere about 8:30 on the morning of December 23, 1921, as plaintiff and a woman friend accompanying her were on their way to work.

We would be wholly unjustified in reversing and remanding this case on the ground that the obstruction was not on a public sidewalk. All the evidence shows that it was, and we are unable to find any ground for the claim that it occurred on a private walk. The place was a public sidewalk, but at a place where the trucks and perhaps the employees of the Wyeth Hardware Company crossed the sidewalk and entered the company's warehouse. The fact that the sidewalk was also used at this point as a crossing by said company does not deprive the place of its public character, nor relieve the city of the duty of exercising reasonable care to keep it in reasonably safe condition for public use.

We have studied the record, and are also firmly convinced that there is no merit in the point that the jury had no evidence from which it could find that the place of the accident was within the city limits and upon a public street thereof. While no witness expressly testifies that such was the fact, yet the whole case was tried on the theory that it was. The witnesses speak of living in St. Joseph, and of traveling on this street and that, and of going along Second street from Faraon to Jule, and of how often they traveled the different streets to satisfy their domestic needs, such as going to the city market and the like....