Snowden v. City of St. Joseph

• Citation: 147 S.W. 492,163 Mo.App. 667
• Parties: EMILY J. SNOWDEN, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Decision Date: 13 May 1912
• Court: Kansas Court of Appeals

147 S.W. 492

163 Mo.App. 667

EMILY J. SNOWDEN, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

May 13, 1912

Appeal from Buchanan Circuit Court.--Hon. W. D. Rusk, Judge.

AFFIRMED.

Affirmed.

W. B Norris, O. E. Shultz and Phil A. Slattery for appellant.

G. L Zwick for respondent.

OPINION

BROADDUS, P. J.

This suit was instituted to recover damages for personal injuries received by plaintiff on February 25, 1911, as the result of a fall on an icy sidewalk of the defendant city. The facts are that on the 13th day of January, 1911, there was a fall of three and three-tenths inches of snow and sleet in the city of St. Joseph; and that between that date and the 25th day of February, 1911, snow fell on the following dates Two-tenths of an inch; on the 21st day of January; on February 5th, four-tenths of an inch; on February 18th, four and two-tenths; on February 19th, four-tenths of an inch.

The plaintiff's evidence went to show that the snow and ice on the sidewalk on the south side of the street had been there ever since the fall of snow and sleet on the 13th day of January. Her evidence went to show that the snow had been trodden upon, had partly melted and formed ice, and that the surface of the sidewalk was rough and uneven. The evidence of plaintiff as to the snow and ice on the sidewalk was of the most positive character, and that it had existed in that condition for a considerable length of time before the plaintiff received her injury. There was an abundance of evidence to the effect that the plaintiff fell and was injured on the sidewalk, and that her fall was occasioned by the uneven and slippery condition of the frozen snow and ice on the sidewalk.

The defendant's evidence tended to show that the sleet and snow that fell on January 13th, had disappeared previous to January 26th. Defendant introduced the record of the weather bureau, which showed that after said last date until the 5th of February the thermometer, most of the time, stood far above freezing point, and sometimes went as high as sixty-three degrees above zero. The weather bureau record showed that on February 5th, three-fourths of an inch of snow fell, which had disappeared on February 8th; that on February 18th, 4.2 inches of snow fell, and on the 19th, .04 of an inch fell; that on the 20th of the month there was only a trace of snow that fell, and that there was only 1.8 inches of snow remaining on the ground, and that none fell between that date and the 25th.

Within the time provided by law the plaintiff gave the city the following notice:

"Notice to the Honorable A. P. Clayton, Mayor of the city of St. Joseph, Missouri, of claim for damages, as provided by section No. 8863, Revised Statutes of Missouri 1909.

"You are hereby notified that I, Emily J. Snowden, intend to, and do claim damages from the city of St. Joseph, Missouri, for personal injury growing out of defects in the condition of a sidewalk in said city, and in the following paragraphs are stated the place where, the time when such injury was received, and the character and circumstances of the injury.

"Place Where. On the sidewalk on the south side of Mary street between Twenty-eighth street and Twenty-ninth street in the city of St. Joseph, Missouri, and more particularly at a point about one hundred and sixty feet east of the southeast corner of Twenty-eighth and Mary streets.

"Time When. February 25, 1911, between the hours of twelve o'clock and two o'clock p. m.

"Character and Circumstances of Injury. I was walking east on said sidewalk and was caused to slip and fall by reason of the snow and ice which had accumulated thereon and by reason of the defective construction and condition of said sidewalk. The injury sustained by reason of said fall was an interscapular fracture of the right hip joint."

The allegations of negligence are, that the side--walk was defective and that the defendant permitted snow and ice to accumulate and remain on it "in uneven and irregular masses or ridges so that the surface thereof was hard, slippery, rough and uneven; that said obstruction and dangerous, defective and unsafe condition was permitted by said defendants to exist for several weeks prior to the time of the injury hereinafter described; and that defendants knew, or by the exercise of ordinary care could have known, of said obstructions," etc., in time to have repaired the same before the plaintiff's injury, but negligently failed to so do.

Richard L. Spencer and John C. Landis, Jr., were made parties defendant, but the cause was dismissed as to them with the consent of plaintiff. The answer was a general denial and a plea of contributory negligence. At the close of all the evidence defendant asked the court to direct a verdict in its behalf, which the court refused to do.

It is the contention of the appellant that plaintiff's testimony is opposed to the physical facts and therefore cannot be true, and that the court erred in not directing a verdict for defendant. This contention is founded upon the assumption of the absolute verity of the evidence of the weather bureau to the effect, that there was no snow or ice on the ground after the 26th of January and until the 18th day of February, when the last snow of any consequence fell until the date of the plaintiff's injury. We are of the opinion that such evidence is not to be taken as absolute proof of the conditions at the times mentioned. We know of no such rule of evidence. Notwithstanding we are of the opinion that such evidence is entitled to great weight, we are free to say that it should...