Studer v. City of St. Joseph

• Citation: 185 S.W. 1196
• Decision Date: 01 May 1916
• Docket Number: No. 11950.,11950.
• Parties: STUDER v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

185 S.W. 1196

STUDER v. CITY OF ST. JOSEPH.

No. 11950.

Kansas City Court of Appeals. Missouri.

May 1, 1916.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

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

Chas. L. Faust, City Counselor, Merrill E. Otis, First Asst. City Counselor, and Herman Hess, Second Asst. City Counselor, all of St. Joseph, for appellant. W. B. Norris, of St. Joseph, for respondent.

JOHNSON, J.

This is an action to recover damages against defendant, a city of the first class, for personal injuries alleged to have been caused by negligence of defendant in allowing rough and uneven ice to form and remain on a public sidewalk. While on his way to work plaintiff, at about 6 o'clock in the morning of February 28, 1914, slipped on the ice, fell, and was seriously injured. The sidewalk, on the south side of Noyes avenue, an east and west street in the extreme southern part of the city, had been laid by the property owners with the consent of defendant and on the grade established by defendant. There was no sidewalk on the north side of the street, and plaintiff, who lived on that side, about 100 yards east of the place of injury, generally followed a path on vacant land west of his property in going to and from his work, and did not use the sidewalk on the south side, but on this morning he and his son, who accompanied him, crossed over to the south side and walked on the sidewalk which was constructed of granitoid and was clear of snow and ice, except at one place. The evidence discloses that one of the adjacent lots was lower than the sidewalk, and the topography of the whole block south, therefore, was such that water from rains and melting snow flowed northward, collected on the lower lot and thence across the top of the sidewalk in a northwesterly course. Such condition had prevailed since the construction of the sidewalk, and had continued for so long that constructive knowledge of its existence on the part of defendant should be inferred as a matter of law. No snow had fallen in three days preceding the injury, and during those days the temperature had been above freezing in the daytime and below at night. Water from melting snowdrifts had flowed over the sidewalk during the day in a stream two or three feet wide, and at night this stream had congealed into a strip of thin and uneven ice. The remainder of the sidewalk was dry and entirely free from ice or snow. Plaintiff did not know of the strip of ice and could not see it, owing to the darkness, which was extreme. The evidence shows that he was exercising reasonable care and fell from stepping unwittingly on the ice; the presence of which was concealed by the darkness. The jury returned a verdict for plaintiff, and after its motion for a new trial was overruled defendant appealed.

The court did not err in overruling the demurrer to the evidence. The evidence sufficiently shows that Noyes avenue, at the place of the injury, was a public street within defendant's corporate limits (Vandevere v. Kansas City, 187 Mo. App. 297, 173 S. W. 696; Best v. St. Joseph, 179 Mo. App. 330, 166 S. W. 817; Knight v. Kansas City, 113 Mo. App. 561, 87 S. W. 1192),...