Snickles v. City of St. Joseph

• Decision Date: 15 November 1909
• Parties: ANNA M. SNICKLES, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

122 S.W. 1122

139 Mo.App. 187

ANNA M. SNICKLES, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

November 15, 1909

Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.

AFFIRMED.

Judgment affirmed.

W. B Norris and O. E. Shultz for appellant.

(1) Defendant's demurrer should have been sustained for the reason that plaintiff was guilty of contributory negligence. Cowen v. Kansas City, 108 Mo. 394; Baker v Railroad, 122 Mo. 550. (2) Defendant's demurrer should have been sustained because the evidence shows the sidewalk complained of was not defective. Fairgrieve v Moberly, 39 Mo.App. 37; Grossenbach v. Milwaukee, 65 Wis. 31. (3) Defendant's demurrer should have been sustained because the written notice served upon the mayor did not sufficiently describe the location of the defect which caused plaintiff's injury. Butts v. Stowe, 53 Vt. 600; Dalton v. Salem, 139 Mass. 91; Cronan v. Boston, 135 Mass. 110. (4) The trial court wrongfully invaded the province of the jury in granting plaintiff a new trial. Kenzel v. Stephens, 73 Mo.App. 16.

Peter J. Carolus for respondent.

(1) The demurrer was properly overruled, because it cannot be said as a matter of law that the board sidewalk in evidence was not defective. That question together with all the circumstances is for the jury. Fairgrieve v. Moberly, 39 Mo.App. 156; Schroth v. Prescott, 63 Wis. 652; Hill v. Fond du Lac, 56 Wis. 191. (2) The notice is sufficient. It stated the time and place and the character and circumstances of the injury. Reno v. St. Joseph, 169 Mo. 655. (3) That section 5724, Revised Statutes 1899, requiring plaintiff to serve notice on the city within sixty days after the injury, as a condition precedent to the right of plaintiff to institute suit, is void, as "it attempts to regulate the practice, procedure and jurisdiction of the circuit courts, and changes the method of obtaining, rendering and enforcing judgments." "It undertakes to regulate the practice in the courts of the State in cases where said city is an ordinary litigant." "It is not a matter of municipal regulation." Badgley v. St. Louis, 149 Mo. 122. (4) There is no contention that the city would be liable for mere slipperiness of a properly constructed walk, or one which was not defective, caused by rains; but respondent claims that it is the duty of the city to anticipate as a matter of common knowledge, the increased dangers of a defective walk from mud and rains. Milledge v. Kansas City, 100 Mo. 496. (5) And a greater degree of care should be exercised by the city on account of the western slope, as even slight negligence, or a slight defect in the walk added to the already dangerous slope would greatly increase the dangers thereof, which should be anticipated by the city. Milledge v. Kansas City, supra; Fairgrieve v. Moberly, 29 Mo.App. 156.

OPINION

JOHNSON, J.

This is an action to recover damages for personal injuries sustained by plaintiff from falling on a board sidewalk in St. Joseph, a city of the second class. Plaintiff alleges that her injuries were caused by the negligence of defendant. The verdict of the jury was for the defendant but the trial court sustained plaintiff's motion for a new trial on the ground that the verdict was against the weight of the evidence. Defendant appealed from the judgment awarding a new trial.

In such cases we do not interfere with the discretion exercised by the trial judge unless we find either that the petition fails to state a cause of action or that the proof adduced by the plaintiff is insufficient to raise an issue to go to the triers of fact. We do not weigh the evidence except for the purpose of determining whether that most favorable to the cause of action asserted is substantial. Defendant recognizes this rule, but contends that plaintiff has failed to make out a case for the jury and argues, first, that the notice of the injury given defendant was fatally defective for the reason that it failed to state the place of the injury with sufficient definiteness; second, that the evidence most favorable to plaintiff fails to accuse defendant of negligence and, third, that it does shows that the injury was the direct result of plaintiff's own negligence. Should we find that any of these contentions is well taken, a proper case would be presented for our interference with the action of the trial court in granting a new trial.

The evidence of plaintiff discloses the following state of facts: The injury occurred early in the morning of August 28, 1907, on Hammond street between Lookout street and Swift avenue, all public streets of the city. Hammond street runs east and west, the other named streets north and south. Hammond street was not paved but some grading had been done on it by the city. A board sidewalk was maintained on the north side of the street. A deep gully separated the sidewalk from the roadway and there was no sidewalk on the south side of the street. The plane of the sidewalk was about four feet above that of the street. West from Lookout street to Swift avenue, Hammond street ran down a steep hill. The gully had extended under the stringers underneath the south side of the board walk and the stringers had rotted. From these two causes, the south side of the walk had sagged down to an extent to cause the walk to slope sharply to the south. Plaintiff, who was fifty-six years old, lived on the north side of Hammond street just west of Lookout street. She left her house to go to work and started westward on the sidewalk described. It had rained during the night and the walk was wet and slippery. She realized that the way was dangerous, owing to its slope in two directions and its slippery condition, and states that she walked along the edge of the property line with the greatest care. At a point between the middle of the block and Swift avenue, her feet slipped toward the south and she fell heavily to the sidewalk breaking her arm. It appears that the defect in the sidewalk of which plaintiff complains had existed long enough for the city to have known of it and to have repaired it had reasonable care been observed.

The negligence alleged in the petition is as follows:

"That on the 28th day of August, 1907, and for a long time prior thereto, Hammond street, between Lookout streets on the east and Swift avenue on the west was a public highway and thoroughfare of said city, and that on said date there was a wooden sidewalk constructed upon and along the north side of Hammond street between the points named, consisting of two stringers running lengthwise and having cross-planks nailed thereto which were about four feet long that at a point on said sidewalk about one hundred and ten feet east of Swift avenue said walk had become old and crooked, and uneven and out of repair, and the crossboards had become partly rotten, and the stringers underneath said walk had become weak and bent, rotten and decayed, and the braces underneath said stringers had become removed, and the dirt underneath (of) said stringers and braces had been permitted to wash away, causing the south side of said walk to drop and tilt from a horizontal, and to be sunken, and uneven and rough, and that on account of such defects said walk was caused to slope toward the south, leaving the south line of said walk about six inches below the line of its original plane of construction, making it dangerous for persons to walk thereon, and especially so in inclement or wet weather.

"That the city of St. Joseph, at said date, and for a long time prior thereto,...