Twedell v. City of St. Joseph
| Citation | 152 S.W. 432,167 Mo.App. 547 |
| Parties | HATTIE L. TWEDELL, Respondent, v. CITY OF ST. JOSEPH, Appellant |
| Decision Date | 31 December 1912 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. W. K. Amick, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
W. B Norris, O. E. Shultz and Phil. A. Slattery for appellant.
(1) Defendant's demurrer should have been sustained for the following reasons: (a) That portion of the street where plaintiff was injured the city had never opened up or improved for use by the public. Curran v. St Joseph, 143 Mo.App. 618; Downend v. Kansas City, 156 Mo. 60; Ely v. St. Louis, 181 Mo 723. (b) Plaintiff was familiar with the condition of the street at that point and she was guilty of contributory negligence in attempting to use it when it was so dark that she could not see. Bohl v. Dell Rapids, 91 N.W. 315; Evansville v. Christy, 63 N.E. 867; Neal v. Town of Marion, 35 S.E. 812; Town of Bosnell v. Wakley, 48 N.E. 637; Pittman v. City of El Reno, 46 P. 495. (2) Plaintiff's instruction on the measure of damages is erroneous for the following reasons: (a) The wife cannot recover for loss of time, medicine, care and medical treatment. Kirkpatrick v. Railroad, 129 Mo.App. 524; Plummer v. City of Milan, 70 Mo.App. 598; Willis v. City of Westport, 82 Mo.App. 522. (b) There was no evidence that any expense had been contracted for medicine or care, and there was no evidence to show the value of plaintiff's time. Graefe v. Transit Co., 224 Mo. 274; Gibler v. Association, 203 Mo. 224; Knight v. Kansas City, 113 Mo.App. 565; Ingles v. Railroad, 145 Mo.App. 247; Field v. Railroad, 156 Mo.App. 650; Brake v. Kansas City, 100 Mo.App. 615.
Muir & O'Connor for respondent.
A city which has once assumed to improve a sidewalk or street or part thereof, owes thereafter a duty to the public to keep said street or such part thereof as it has assumed to improve, in a reasonably safe condition for ordinary travel in the entire width of such street or part thereof which it has undertaken to improve. Moore v. Cape Girardeau, 103 Mo. 470; Hunter v. Weston, 111 Mo. 176; Gibbs v. City of Monett, 145 S.W. 841 Both the appellate and Supreme Court have repeatedly stated that if the defect of the street or walk is not so patently dangerous that no ordinary, prudent or careful person would attempt to pass over it, such person is not precluded, as a matter of law, from the right of action, if she be hurt in using this street or walk with ordinary care to avoid injury. Heberling v. Warrensburg, 204 Mo. 604; Chelton v. St. Joseph, 143 Mo. 238; Coffee v. Carthage, 186 Mo. 573; Coombs v. Kirksville, 134 Mo.App. 645; Howard v. New Madrid, 148 Mo.App. 57; Graney v. St. Louis, 141 Mo. 180.
--Plaintiff sued the city of St. Joseph, a city of the second class, to recover damages for personal injuries she alleges were caused by the negligence of defendant. The answer is a general denial and a plea of contributory negligence. The cause is here on the appeal of defendant from a judgment of $ 500, recovered by plaintiff in the circuit court.
On her return home from a visit to a neighbor, plaintiff fell into a hole or gully made by the erosion of surface water near an intake the city maintained at the intersection of Eighteenth and Belle streets and sustained the injuries of which she complains.
The locality is in an outlying residence portion of the city. Eighteenth street runs north and south, Belle street east and west. Neither street was paved and we assume from the evidence neither had been graded. Both were dedicated streets and had been used as public thoroughfares many years. There was a board sidewalk on the east side of Eighteenth street which was used by most of the pedestrians traveling on that street. Most of such travel on Belle street was along the sidewalk space on the south side where there was a better path, especially in wet weather, than that on the opposite side. The house where plaintiff had been calling was on the north side of Belle street, two doors west of Eighteenth street. Plaintiff lived on the east side of the latter street a block or more north of Belle street. In going to make the call she entered the premises of her neighbor from an alley in the rear but owing to the lateness of the hour (nine p m.) and the darkness, she returned by a different and, as she thought, a safer route. She left the premises by the front exit and, reaching a path in the sidewalk space on the north side of Belle street, proceeded eastward along that path to the intersection of Eighteenth street intending to cross over to the east side of that street and to go thence north along the sidewalk to her home. The city had extended its sewer system along these streets and had put in an intake at the northwest corner of the intersection at a point just outside the curb line, in what would have been the gutter had the streets been paved. The place was on the side of a long hill, the drainage was towards the south and east, and in wet weather a large volume of water flowed to the intake from the north along the west side of Eighteenth street and from the west along the north side of Belle street. A deep hole or gully had been made by such surface water just north of the intake and in Eighteenth street and the gully was in the line of the path on the north side of Belle street. The path made a detour to the north around the hole but weeds had grown up on both sides of the path and around the hole making the path obscure at night. The city had extended its lighting system over these streets but had no light at this corner. There was one at each alternate street intersection but the light thrown on this corner did not enable plaintiff to discover the curve in the path around the gully and instead of following the path at the place of the turn, she went straight on and stepped into the hole the presence of which, as stated, was concealed by the surrounding vegetation. The city had put a barricade at the southeast side of the hole to prevent vehicles from falling in, but had left the opposite side unguarded. The evidence relating to the use made by pedestrians of the path in question disclose that there were four residences on the north side of Belle street in the block...
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