Taylor v. Kansas City

• Citation: 112 S.W.2d 562,342 Mo. 109
• Decision Date: 25 January 1938
• Docket Number: 34997
• Parties: Johanna Taylor v. Kansas City, Appellant
• Court: United States State Supreme Court of Missouri

112 S.W.2d 562

342 Mo. 109

Johanna Taylor v. Kansas City, Appellant

No. 34997

Supreme Court of Missouri

January 25, 1938

Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.

Reversed and remanded.

George Kingsley, James R. Sullivan and Arthur R. Wolfe for appellant.

(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence requested at the close of plaintiff's case and at the close of all the evidence because the defect causing the injury was of such a trivial nature that, as a matter of law, it was not actionable. Fairgrieve v. Moberly, 39 Mo.App. 36; Milledge v. Kansas City, 100 Mo.App. 497; Berry v Sedalia, 201 Mo.App. 439, 221 S.W. 757; Mullen v Sensenbrenner Mercantile Co., 260 S.W. 982, 33 A. L. R. 984; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487; Lundahl v. Kansas City, 209 S.W. 565; City of Ada v. Burrow, 42 P.2d 111; Smith v. Tulsa, 45 P.2d 689; Oklahoma City v. Burns, 50 P.2d 1101; Oklahoma City v. Banks, 53 P.2d 1120; Short v. Oklahoma City, 58 P.2d 334; Isaacson v. Boston, 195 Mass. 114, 80 N.E. 809; Newton v. Worcester, 174 Mass. 181, 54 N.E. 521; Gustat v. Everett, 278 Mass. 1, 179 N.E. 164; Corthel v. Great A. & P. Tea Co., 196 N.E. 850; Weiss v. Detroit, 105 Mich. 482, 63 N.W. 423; Yotter v. Detroit, 107 Mich. 74, 64 N.W. 951; Jackson v. Lansing, 121 Mich. 279, 80 N.W. 8; Rivard v. Bay City, 279 Mich. 318, 272 N.W. 690; Grass v. Seattle, 100 Wash. 542, 171 P. 533; McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747; Denver v. Burrows, 76 Colo. 17, 227 P. 840; Phillips v. Colorado Springs, 76 Colo. 257, 230 P. 617; Goodwyne v. Shreveport, 134 La. 820, 64 So. 762; Brown v. New Orleans, 7 La. App. 611; Knoxville v. Hood, 97 S.W.2d 446; Beltz v. Yonkers, 148 N.Y. 67, 42 N.E. 401; Griffin v. Town of Harrison, 268 N.Y. 238, 197 N.E. 265; Lalor v. New York, 208 N.Y. 431, 102 N.E. 558; Ross v. Shawano, 179 Wis. 595, 191 N.E. 970; Burroughs v. Milwaukee, 110 Wis. 478; Hollan v. Milwaukee, 174 Wis. 392, 182 N.W. 978; Horton v. Cray, 133 A. 811; Hirst v. Iowa City, 188 N.W. 783; Louisville v. Uebelhor, 134 S.W. 152; Richmond v. Schonberger, 68 S.E. 284; Chicago v. Norton, 116 Ill.App. 570; White v. Belleville, 284 Ill.App. 322, 1 N.E.2d 790; Puck v. Chicago, 281 Ill.App. 6. (2) The court erred in admitting evidence that previously another lady got hurt on the same place. Goble v. Kansas City, 148 Mo. 475; Smart v. Kansas City, 91 Mo.App. 594; McNeil v. Cape Girardeau, 153 Mo.App. 429; Morgan v. Kirksville, 181 Mo.App. 352; Clancy v. Joplin, 181 S.W. 123; Hebenheimer v. St. Louis, 269 Mo. 102, 189 S.W. 1180; Richmond v. Schonberger, 68 S.W. 284; Chicago v. Norton, 116 Ill.App. 570; Hamillin v. Buffalo, 173 N.Y. 72, 65 N.E. 944; Butler v. Village of Oxford, 79 N.E. 713. (3) The trial court erred in giving Instruction A on behalf of the plaintiff, because: (a) It assumes that the slope was abrupt, which was a material controverted fact. Sheppard v. Travelers Protective Assn. of America, 104 S.W.2d 788; Counts v. Thomas, 63 S.W.2d 420; Kamer v. Railroad Co., 32 S.W.2d 1084; Barr v. Nafziger Baking Co., 41 S.W.2d 563; Hockley v. Hulet, 16 S.W.2d 753; Eudy v. Federal Lead Co., 220 S.W. 505; Holloway Cotton Co. v. Railroad Co., 77 S.W.2d 192; Hengelsberg v. Cushing, 51 S.W.2d 188; Schimmelpfenning v. Wells, 24 S.W.2d 160; Shephard v. Century Elec. Co., 299 S.W. 90. (b) It fails to submit any facts for the jury's finding upon which either the jury could find negligence or the court declare negligence as a matter of law, and gave the jury a roving commission to find that the sidewalk was in an unsafe condition. Long v. Ellison, 272 Mo. 581, 199 S.W. 987; Pevesdorf v. Union E. L. & P. Co., 333 Mo. 1177, 64 S.W.2d 947.

John R. James and Sloane Turgeon for respondent.

(1) There was no error in refusing defendant's demurrers to the evidence because under the pleadings and the evidence the question of whether or not the sidewalk in question was defective and unsafe was a question for the jury. Stewart v. Sheidley, 16 S.W.2d 607; Lundahl v. Kansas City, 209 S.W. 564; Price v. Maryville, 174 Mo.App. 698; Hanke v. St. Louis, 272 S.W. 933; Huffman v. Hannibal, 287 S.W. 848; Willis v. St. Joseph, 184 Mo.App. 428; Ryall v. Maplewood, 201 S.W. 633; Kelley v. Kansas City, 153 Mo. 484; Proctor v. Poplar Bluff, 184 S.W. 123; O'Donnell v. Hannibal, 144 Mo.App. 155; Drake v. Kansas City, 88 S.W. 689, 190 Mo. 370; Hinton v. St. Joseph, 282 S.W. 1056; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487; Milledge v. Kansas City, 100 Mo.App. 490; Berry v. Sedalia, 201 Mo.App. 436, 212 S.W. 757; Fairgrieve v. Moberly, 39 Mo.App. 31. (2) The court properly admitted evidence of other accidents at the same place. Asbury v. Fidelity Natl. Bank & Trust Co., 100 S.W.2d 946; Hebenheimer v. St. Louis, 269 Mo. 102, 189 S.W. 1180; District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618; Charlton v. Railroad Co., 200 Mo. 413, 98 S.W. 538; McGinnis v. Rigby Ptg. Co., 122 Mo.App. 227, 99 S.W. 8; Hoover v. Mo. Pac. Ry. Co., 16 S.W. 480; Golden v. City of Clinton, 54 Mo.App. 100; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340, 25 S.W. 936; Mathews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S.W. 802; Golden v. Chicago, R. I. & P. Ry. Co., 84 Mo.App. 59; 22 C. J., p. 751, sec. 840; 2 Jones on Evidence, sec. 680; Boyd v. Logan Jones D. G. Co., 104 S.W.2d 348. (3) Plaintiff's Instruction A was properly given by the court and properly submitted the issues to the jury. McQuillin on Instructions, p. 816, sec. 1395; 4 Randall's Instructions to Juries, sec. 3932, p. 4261; Smith v. Greer, 257 S.W. 829; Wright v. Kansas City, 187 Mo. 678; Yocum v. City of Trenton, 20 Mo.App. 489; Kingsley v. Kansas City, 166 Mo.App. 544; Squiers v. Kansas City, 100 Mo.App. 631; Hebenheimer v. St. Louis, 269 Mo. 101; Berry v. Sedalia, 201 Mo.App. 440; Hemphill v. Kansas City, 100 Mo.App. 566; O'Leary v. Kansas City, 127 Mo.App. 71, 106 S.W. 94.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

Ferguson, C.

Plaintiff was injured by a fall on a sidewalk in Kansas City, Alleging that the fall was caused by a defect in the sidewalk she brought this action against the city for damages. On a trial in the Circuit Court of Jackson County plaintiff had a verdict and judgment in the amount of $ 12,000, and defendant appealed.

We necessarily first consider appellant's assignment that the trial court erred in refusing to give its requested instruction in the nature of a demurrer to the evidence at the close of all the evidence in the case, which requires a summation and review of the evidence in the light most favorable to plaintiff.

The fall occurred as plaintiff was walking north on the public sidewalk along the east side of Troost Avenue and in front of 3525 Troost. This is a business section and the buildings abutting the sidewalk along the east side of Troost are occupied by stores and for other commercial purposes. This public sidewalk is constructed of concrete and is eleven feet in width with a slope for drainage from the building line to the curb of one-fourth of an inch to one foot. A manhole was located in the sidewalk about opposite 3525 Troost. The east edge of the perforated cast iron cover of the manhole, which was 2 feet in diameter, was thirty-three and one-half inches from and west of the building line. The cover was level, that is it did not slope to conform with the slope of the sidewalk. The west side or edge of the manhole cover was level or even with the surface of the sidewalk so that in the normal slope of the sidewalk from the building line to the east edge of the level cover an offset would result, that is, the manhole cover would be lower than the surface of the sidewalk adjoining it on the east. In constructing the sidewalk and purportedly as a method of adjusting this situation that portion of the sidewalk adjoining the east side or edge of the level manhole cover was so constructed as to form a semicircular sloping "shoulder" about that side of the manhole cover. Plaintiff's evidence was that this shoulder made a slope of eight inches from the normal surface of the sidewalk east of the manhole to the east edge or side of the manhole cover and that the east edge of the manhole cover was one and one-half inches below the normal surface of the sidewalk at the point where the slope commenced, that is, that there was a slope in the sidewalk from the normal surface to the east edge of the manhole cover of one and one-half inches in eight inches. A blue print showing measurements and levels and a number of photographs of the sidewalk and manhole cover were introduced in evidence and the originals have, by agreement, been filed in this court. It is difficult to here describe the condition complained of which was depicted by the blue print and the photographs before the trial court and the jury.

Plaintiff, a widow, and her daughter had come to Kansas City from Salt Lake City, Utah, three days prior to the date of this accident. The daughter had accepted employment in Kansas City and they were living at a nearby apartment house. On this morning about eleven o'clock, plaintiff was on her way to take a street car at the Armour Boulevard stop on Troost Avenue. Plaintiff testified that it was a warm day and as there was some shade on the east side of the sidewalk near the buildings she was walking on that side of the sidewalk; that she stepped on the edge or side of this slope at the east side of the manhole, and, "my heel slipped down that slanting or curving incline" and "it made me lose my balance and I fell." A witness who, from a distance of about ten feet, saw plaintiff fall, said that plaintiff stepped on the "slanting" side of the manhole shoulder and "her foot turned and threw her on her right side."

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