Van De Vere v. Kansas City

• Decision Date: 11 June 1917
• Docket Number: No. 12454.,12454.
• Parties: VAN DE VERE v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

196 S.W. 785

VAN DE VERE v. KANSAS CITY et al.

No. 12454.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Rehearing Denied July 2, 1917.

Appeal from Circuit Court, Jackson County; Dan'l E. Bird, Judge.

"Not to be officially published."

Suit by Madison Van De Vere against Kansas City and others. Judgment for plaintiff, and named defendant appeals. Affirmed.

J. A. Harzfeld and A. F. Smith, both of Kansas City, for appellant. W. Haley Reed and Cook & Gossett, all of Kansas City, for respondents.

TRIMBLE, J.

This is a suit by a husband for loss of his wife's services, and for expense of medical attention to her, caused and rendered necessary by an injury she received from a billboard on the sidewalk which the wind blew over upon her as she passed. It is the second appearance of the case in this court. See Van De Vere v. Kansas City, 187 Mo. App. 297, 173 S. W. 696, for the former opinion. That appeal was by defendant Kansas City from the action of the trial court in sustaining a motion to set aside an involuntary nonsuit, and to grant plaintiff a new trial. The judgment sustaining said motion was affirmed. Upon a retrial of the case, the plaintiff recovered judgment in the sum of $1,200 against the defendants Kansas City, Lloyd Medes, and the Majestic Theater Company. The city, the only solvent defendant, alone appealed.

At the time of the injury, the defendant Taylor & Winn Construction Company was constructing for Medes a building on the west side of Walnut street in Kansas City between Eleventh and Twelfth streets, at what is known as 1122 Walnut. To keep pedestrians and the public away from said building while in course of construction, a fence was built out in the sidewalk about midway between the front of the building and the outer edge of the walk. This fence consisted of upright posts at intervals standing on boards laid flat on the sidewalk and weighted with stones and then planks were attached to the posts similar to the way an ordinary plank fence is made. On the outside of this fence, that is, on the portion of the walk left for the use of the public, Medes permitted the defendant Majestic Construction Company to place a huge billboard about 9 or 10 feet high and 10 or 12 feet long. This billboard was fastened to the barricade or fence above mentioned, and a strip of lumber three-eighths of an inch thick and 3 inches wide ran from the top of the billboard in the center back to a joist in the building. The lower part of the billboard had a similar piece extending back to a two-by-four driven, as a stake, into the ground. These two pieces are referred to as "cleats," and were "tacked" to the joist and stake and to the billboard by one eight-penny nail in each place. As plaintiff's wife was passing, an ordinary gust of wind blew the billboard over upon her, knocking her into a mortar box at the curbstone and seriously injuring her. There can be no question in this court but that the fall of this heavy billboard upon plaintiff's wife injured her, and there is no ground whatever for us to say that the verdict is excessive as claimed by defendant. When the billboard fell, the fence or barricade went over with it. The billboard was there at least as long as ten days or two weeks, and possibly longer before it fell. The injury occurred at noon, and the place in question was on one of the busiest thoroughfares of the city and in the heart of the business section. During the time the billboard was on the sidewalk the city's building inspector was there a number of times inspecting the construction of the building and the methods and conditions adopted and in existence in and about said building, and among the matters to be inspected were the precautions necessary for the safety of the public in passing a building in process of erection. The billboard served no purpose in the erection of the building, but was used solely to advertise the theater.

The main contention of the city is that the case was erroneously submitted to the jury upon a different theory from that predicated in the petition. Appellant's view is that the petition presents merely the usual and ordinary case of negligence growing out of something that lawfully and rightfully belonged where it was, but through some lack of care, either in its original construction or through failure to see to its condition afterward, it contained an element of danger which resulted in injury to another, which ordinary care would have prevented. Of course if that is the cause of action presented by the petition, then before plaintiff can recover he must offer evidence at least tending to show, on the part of the city, a neglect of such duty as the law required of the city under those circumstances. For instance, if the billboard in this case was at a place where it had a right to be, then the city would not be guilty of negligence unless it knew, or by the exercise of ordinary care should have known, that the billboard was not securely fastened in the first place or had become insecure afterwards, and that it knew or should have known this for such a length of time before the injury as would enable it by reasonable effort to have remedied the situation. And, in such case, unless there was something which reasonably gave notice to the city of danger, it would not be required to apprehend danger or to make an investigation to see whether it was or was not likely to fall or be thrown down. Consequently, if the cause of action presented by plaintiff's petition is of the nature just stated, it is essential to plaintiff's recovery to produce evidence tending to show that the city either knew the billboard was not securely fastened in the first place or had become insecure, or that the city had notice of such facts as that it should have known of the insecurity, for a time sufficiently long before the injury to enable it, in the exercise of reasonable expedition, to remedy the situation.

But if the billboard was out in the traveled sidewalk in a place where it had no right to be, and where the law imposes upon the city the positive and affirmative duty of removing it, regardless of whether it is securely or insecurely fastened, then the duty imposed upon the city is vastly different. It was its duty to either remove the obstruction or to see that it was fastened at least securely enough so that it would not fall or be thrown down under ordinary conditions reasonably to be expected. And if, under circumstances from which it could reasonably be expected that the billboard might fall or be caused to fall, such board remained on the sidewalk for such a length of time that the city knew, or should have known, of its being there and had reasonable time and opportunity to either remove it or to investigate the security of its fastenings and make them secure...