Stretch v. City of Lancaster

• Decision Date: 11 November 1918
• Docket Number: No. 12781.,12781.
• Parties: STRETCH v. CITY OF LANCASTER.
• Court: Missouri Court of Appeals

206 S.W. 388

STRETCH v. CITY OF LANCASTER.

No. 12781.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Putnam County; L. B. Woods, Judge.

"Not to be officially published."

Suit by Sarah Stretch against the City of Lancaster. Judgment for plaintiff, and defendant appeals. Affirmed.

Fogle & Fogle, of Lancaster, for appellant. S. W. Mills and Campbell & Ellison, all of Kirksville, for respondent.

TRIMBLE, J.

Plaintiff, while walking along a sidewalk in the city of Lancaster, fell and broke her hip. She brought suit against the city, and recovered $750 damages. The city has appealed.

It is urged that the court should have sustained defendant's demurrer to the evidence. This point is based upon two grounds: First, that there was no evidence to show that the city had assumed jurisdiction over the sidewalk at the point where the injury occurred, so as to impose upon it the duty of keeping it in reasonably safe repair; second, that plaintiff's own evidence shows that she was guilty of contributory negligence as a matter of law.

It is true no witness affirmatively, or in so many words, said the sidewalk was a public street of the city over which the public was invited to travel, but the facts disclosed by the evidence on both sides of the case show conclusively that it was, and that no controversy existed or could arise over that matter. The conceded facts disclosed that the street and sidewalk in question constituted a much-traveled thoroughfare, over which the city, by inviting the public to use them, had assumed the burden, imposed by law, of keeping them in reasonably safe repair. Drimmel v. Kansas City, 180 Mo. App. 339, 346, 168 S. W. 280; Benton v. St. Louis, 217 Mo. 687, 705, 118 S. W. 418, 129 Am. St. Rep. 561; Curran v. St. Joseph, 143 Mo. App. 618, 622, 128 S. W. 203. Lancaster is a city of the fourth class, the county seat of Schuyler county. Green street runs north and south along the east side of the public square, and Washington street runs east and west along the south side thereof, the two streets intersecting at its southeast corner. The fall occurred on the sidewalk running along the north side of Washington street at a point 125 feet east of the square. At this point an alley runs from Washington street north along the rear of the business houses fronting west on the east side of the square. One of these business buildings abuts the sidewalk on the north side of Washington street and extended from the square to the alley crossing. East of said crossing is another business building. The sidewalk from the square to the alley is a plank walk 8 feet wide slightly elevated above the ground. The crossing on the alley is made of cinders, and then the sidewalk continues, made of brick and 5 feet wide. The street and sidewalk have existed as such for many years, and many persons traveled thereon. Washington street had sidewalks on both its north and south sides running east from the square, and, further on east of the business buildings above mentioned, there were dwellings on said street and crossings connecting the sidewalks. The record on both sides discloses these facts, and also shows that the case was tried on the assumption by all parties that the sidewalk where plaintiff fell was a public thoroughfare of the city over which the public was invited to travel, and which the city was legally bound to keep in reasonably safe repair.

We are unable to agree with appellant in its contention that plaintiff's own evidence conclusively convicts her of contributory negligence. The injury occurred about 7 o'clock p. m., December 27th. Plaintiff was going from her home, a block west of the southwest corner of the public square, east along the north side of Washington street to see her father, who lived several blocks east of the square, on the same street. At the east end of the 8-foot board walk where it reaches the west side of the alley crossing was a plank step some 10 or 12 inches below the walk. The north end of this step lay upon the ground or cinders,...