Sparks, Pro Ami v. Kansas City, Mo.

• Decision Date: 02 March 1942
• Docket Number: No. 20049.,20049.
• Citation: 160 S.W.2d 819
• Parties: LOLA SPARKS, PRO AMI., RESPONDENT, v. KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

160 S.W.2d 819

LOLA SPARKS, PRO AMI., RESPONDENT, v. KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION, APPELLANT.

No. 20049.

Kansas City Court of Appeals, Missouri.

March 2, 1942.

Appeal from Circuit Court of Jackson County. — Hon. Paul A. Buzard, Judge.

REVERSED.

Homer A. Cope, Cope & Hadsell, Mrs. Sylvester Wells and Walter A. Raymond for respondent.

(1) The court committed no error in refusing defendant's peremptory instruction requested at the close of all the evidence. (a) Respondent's evidence sustained the allegations of negligence and made a submissible case. Cento v. Security Building Co. (Mo.), 99 S.W. (2d) 1, 3; Fox v. City of Joplin, 297 S.W. 449, 451; Williams v. City of Mexico, 224 Mo. App. 1224, 34 S.W. (2d) 992, 994; Johnson v. State, 186 App. Div. 399, 173 N.Y.S. 701, 702, 703, 704, affirmed 227 N.Y. 610, 125 N.E. 919; Lendrum v. Village of Cobleskill, 192 App. Div. 828, 183 N.Y.S. 216, 218; Ross v. State and Daggett, Admr. v. State, 193 N.E. 420, 420; Louisville & N.R. Co. v. Hadler's Admr., 269 Ky. 115, 106 S.W. (2d) 106, 107, 110, 111. 5 Blashfield, page 398, sec. 3258. (b) Written notice to the city was not required under sec. 7636, R.S. Mo., 1939. (sec. 7637, R.S. Mo., 1929), under the facts here presented. (2) This casualty occurred on park property. The negligence of defendant in the maintenance of its park property was at least concurring negligence for which it is liable regardless of other facts in the case. Healy v. Kansas City, 277 Mo. 619, 211 S.W. 59, 61; Kuenzel v. City of St. Louis, 278 Mo. 277, 212 S.W. 876; Bagby v. Kansas City, 338 Mo. 771, 92 S.W. (2d) 142, 146; Wiggin v. City of St. Louis, 135 Mo. 558, 37 S.W. 528; O'Brien v. Burroughs Adding Mach. Co., 191 Mo. App. 501, 177 S.W. 811, 812; O'Brien v. Heman, 191 Mo. App. 177, — S.W. 805, 810; Kaenter v. Missouri Pac. Ry. Co., 218 S.W. 349, 351; Sec. 7493, R.S. Mo., 1929; Brown v. Salt Lake City, 33 Utah 222, 93 Pac. 570, 572, 573; City and County of Denver v. Taylor, 88 Colo. 89, 292 Pac. 594, 595, 596; Guthrie v. City of St. Charles (Mo.), 152 S.W. (2d) 91, 99; Gray v. Kurn, 345 Mo. 1027, 137 S.W. (2d) 558, 566; 43 C.J., p. 1186, sec. 1957; 19 R.C.L., p. 1041, sec. 330. (3) The failure to maintain a retaining wall or barricade at the margin of the street was not any defect in the condition of any street or thoroughfare within the meaning of sec. 7493, R.S. Mo., 1929 (sec. 7637, R.S. Mo. 1939). Hence, written notice was not required. Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236, 240; Koontz v. City of St. Louis, 230 Mo. 128, 89 S.W. (2d) 586, 588; 43 C.J., p. 1186, sec. 1957; 19 R.C.L., p. 1041, sec. 330; Roy v. Kansas City, 204 Mo. App. 332, 224 S.W. 132 135; Bohm v. Racette, 118 Kan. 670, 236 Pac. 811, 42 A.L.R. 571, 572, 573; Phillips v. State Highway Comm., 146 Kan. 112, 68 Pac. (2d) 1087, 1088; Moore v. State Highway Comm., 150 Kan. 314, 92 Pac. (2d) 29, 30; Archip v. City of Sioux City, 241 N.W. 300, 303. (4) The danger in this street was directly created by the act of defendant City itself in constructing this street at the edge of the precipice without a guardrail or barricade. In such situation, the statute requiring written notice is inapplicable. Sloper v. City of Quiney, 16 N.E. (2d) 14, 16; Williams v. City of Nashville, 145 Tenn., 668, 238 S.W. 86, 87; Hilson v. City of Memphis, 221 S.W. 851, 853; Lyon v. City of Binghampton, 256 App. Div. 397, 10 N.Y.S. (2d) 951, 954; Kelly v. City of Butte, 44 Mont. 115, 119 Pac. 171, 172; Pye v. City of Mankato, 38 Minn. 536, 38 N.W. 621.

William E. Kemp and James Patrick Quinn for appellant.

(1) The court erred in refusing to give defendant's peremptory instructions to find the issues for defendant, which were offered at the close of plaintiff's evidence and at the close of all the evidence. (a) Respondent's evidence did not sustain allegations of negligence. Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W. (2d) 54; Bassett v. City of St. Joseph, 53 Mo. 290; Fox v. City of Joplin, 297 S.W. 449; Chance v. City of St. Joseph, 190 S.W. 26. (b) No notice was given to the city as is required by sec. 7636, R.S. Mo. 1939 (sec. 7493, R.S. 1929). Bixby v. Sioux City (Iowa), 164 N.W. 641; Williams v. City of Mexico, 34 S.W. (2d) 992; Horton v. McDonald (Conn.), 135 Atl. 442.

CAVE, J.

This is an appeal by the city from a jury verdict and judgment thereon awarding plaintiff damages in the sum of $1500, resulting from injuries suffered when an automobile in which she was riding was driven from the traveled portion of a public street and over a precipice under the circumstances hereafter detailed.

For convenience, the parties will be referred to as plaintiff and defendant.

Defendant urges error because the court refused its demurrer at the close of plaintiff's evidence and at the close of the case; (a) because the evidence did not sustain proof of the negligence alleged; (b) because no notice of the accident was given to the city as is required by Section 7636, Revised Statutes Missouri 1939.

The petition, after stating the topographical and weather conditions at the time and place of injury, charges defendant with negligence, as follows:

"Plaintiff further states that all of the aforesaid injuries and injurious consequences were directly caused by the negligence of the defendant in this, to-wit:

"That although the defendant maintained said playground and tennis courts in said Roanoke Park on a level approximately 30 to 40 feet below said Valentine Road and the projection beyond the same and at a point a short distance north of said Valentine Road where it curved sharply to the left, and the defendant knew, or, by the exercise of ordinary care and caution could have known before the date complained of herein that without any fence, barricade, or warning sign to indicate said conditions to, or protect persons traveling beyond said highway and therefrom, that by reason of the proximity of said playground and tennis courts in said park and projection beyond said highway and difference in grade, as well as the curve at said place in Valentine Road, as aforesaid, automobiles traveling thereover were likely to pass over and beyond the edge of said highway and onto said projection, and fall to said play-ground and tennis courts below, and the occupants thereof likely to be injured, yet, nevertheless, defendant negligently and carelessly failed to provide any fence, barricade or warning sign to indicate the conditions aforesaid, or protect persons traveling beyond said highway therefrom and onto said projection, and have thus and thereby prevented said automobile going over and beyond said projection with resultant injuries to plaintiff as aforesaid."

Defendant's answer denies generally the averments of the petition, and pleads that no notice was given as required by Section 7636, supra, and certain acts of contributory negligence.

The evidence discloses that the plaintiff was injured on the night of December 28, 1937, and did not bring her suit until June 15, 1939. It is conceded no notice was given to the city concerning the accident prior to the filing of the suit. It is plaintiff's contention that none was necessary.

From the evidence and the original exhibits on file in this court, we conclude the street locations and topography to be as follows: Valentine Road is a public street in Kansas City, with an 18 foot improved paved roadway. At a point less than one block southeast of the point of accident it intersects Roanoke Road which runs generally east and west. From that intersection Valentine Road goes upgrade and curves slightly toward the northwest with a rock wall along the north and northwest edge thereof from the intersection to a point where the street makes a sharper curve to the west. At that point the rock wall stops for a distance of 103 feet around this sharper curve and begins again and extends on westward. The accident occurred on the curve and through the breech in the rock wall. The street and walls had been in such condition since construction in 1909. Adjoining Valentine Road on the north and west is a public park and playground owned and maintained by the city. At the curve in the street and along where there is no rock wall, the distance from the edge of the pavement to the edge of a precipice is from 25 to 27½ feet at right angles. From the top of the precipice to the playgrounds below is approximately 30 feet. There was no curbing, ditch, gutter or sidewalk along the north or west edge of Valentine Road at the point of the accident. The surface of the street and the surface of the land between the street and the precipice are approximately even and level. The space between the pavement and the precipice was seeded with grass and was owned by the city. At the top edge of the precipice there was some small shrubbery, and at the foot of the precipice there were some large trees, the tops of which extended considerably above the top of the precipice.

On December 28, 1937, about 12:30 A.M., plaintiff was riding in a Ford V-8 Coupe automobile being driven by one Straton. There were four people in the seat. The car was being driven in a northwesterly direction along Valentine Road toward the precipice above mentioned and at about 15 miles per hour. The night was dark and foggy and the two headlights and two fog lights were in operation on the car. The occupants could not see more than 20 to 30 feet ahead of the car. Wayne Straton, the driver, was not available as a witness because he had joined the United States Navy prior to the trial. The other occupants of the car testified in substance that as they approached the sharper curve they could see the stone wall to their right but when it ended, just short of the sharper curve, the condition gave the impression that the street forked and that the part they were driving on went straight ahead. When the car left the pavement there was a slight jolt and then it traveled diagonally across the open...