Trippensee v. City of Jefferson

• Decision Date: 01 December 1913
• Citation: 161 S.W. 303,174 Mo. App. 727
• Parties: TRIPPENSEE v. CITY OF JEFFERSON.
• Court: Missouri Court of Appeals

161 S.W. 303

174 Mo. A. 727

TRIPPENSEE v. CITY OF JEFFERSON.

Kansas City Court of Appeals. Missouri.

December 1, 1913.

1. MUNICIPAL CORPORATIONS (§ 766) — STREETS—DEFECTS—PLAN OF CONSTRUCTION.

Where an injury results from a danger inherent in the plan adopted by a city for the improvement of a street, it is not liable, but if the danger has arisen from negligent construction or maintenance of the place, it will be liable.

2. MUNICIPAL CORPORATIONS (§ 784) — STREETS—CONSTRUCTION—SEWER COVER.

Where plaintiff was injured by the movement of a defective sewer cover as he stepped on it, the act of the city engineer in allowing hooks, designed to hold the cover in position, to be so placed that the cover might move was in opposition to the general plan of construction adopted by the city acting in its governmental capacity, and sufficient to show actionable negligence.

3. MUNICIPAL CORPORATIONS (§ 791) — STREETS — DEFECTS — SEWER COVER — DISPLACEMENT —NEGLIGENCE—NOTICE.

Where the displacement of a sewer cover by which a pedestrian was injured was not the result of an accidental or wrongful act of another, but rather the natural consequence of the city's negligence in the original construction of the cover, the city was charged with notice of the defect from the beginning.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

Action by Gus Trippensee against the City of Jefferson. Judgment for plaintiff, and defendant appeals. Affirmed.

James H. Lay and A. T. Dumm, both of Jefferson City, for appellant. Irwin & Peters, of Jefferson City, for respondent.

JOHNSON, J.

Plaintiff sued defendant, a city of the third class, to recover damages for personal injuries he sustained from falling into a sewer inlet in one of the public streets. A sheet iron cover for the inlet became slightly and dangerously but not noticeably displaced in such manner that when plaintiff, who was following the ordinary course of pedestrian travel, stepped upon it, the cover gave way, causing his foot and leg to slip down into the sewer opening. The petition alleges that defendant was negligent in the construction, emplacement, and maintenance of the cover in a position where it would be subjected to displacements that would make it unsafe to pedestrians.

The answer, in addition to a general denial, alleges contributory negligence, and that the injury of plaintiff was due to a danger inherent in a general plan adopted by the city for the construction of such inlets and their covers.

A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of two thousand dollars. Defendant appealed, and contends that the court erred in refusing its request for a peremptory instruction. The injury occurred January 23, 1912, at the northeast corner of Broadway and High streets. Plaintiff and a companion walked west on the sidewalk on the north side of High street until they came to the corner just mentioned, when they turned south, intending to cross High street and walk along the east sidewalk on Broadway. There is evidence tending to show that the sewer opening was in High street near the corner, and in the way of pedestrians. It was three feet long by two feet wide, and was constructed of cement. The sheet iron cover was three feet long and two feet one inch wide. The end which came to the top of the curbstone...