Trippensee v. City of Jefferson

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

161 S.W. 303

174 Mo.App. 727

GUS TRIPPENSEE, Respondent, v. CITY OF JEFFERSON, Appellant

Court of Appeals of Missouri, Kansas City

December 1, 1913

Appeal from Cole Circuit Court.--Hon. J. G. Slate, Judge.

AFFIRMED.

Judgment affirmed.

Jas. H Lay and A. T. Dumm for appellant.

Irwin & Peters for respondent.

OPINION

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 was provided with two iron straps bent down at the ends in the form of hooks which were placed over the inside of the curb to prevent the cover from slipping forward or falling down into the opening. The other end of the cover rested in the gutter at the outer edge of the opening. There is no space between the curb and sidewalk as a general rule in the defendant city but in this instance there was a washed-out place inside the curb that left it isolated with the result that there was nothing to prevent the cover from being pushed backward by the wheels of vehicles passing over its outer end, since the hooks were left without the resistance to such pressure usually offered by the sidewalk between which and the curb they were designed to be inserted. The lack of this back wall also had the effect of making the cover more susceptible to lateral displacements resulting from side collisions with the wheels of passing vehicles. There is evidence tending to show that the cover had been slightly moved both backward and laterally, with the result that one corner of its outer end was in the air,...