Vance v. Kansas City

• Citation: 123 Mo. App. 644,100 S.W. 1101
• Parties: VANCE v. KANSAS CITY.
• Decision Date: 04 March 1907
• Court: Missouri Court of Appeals

100 S.W. 1101

123 Mo. App. 644

VANCE v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

Rehearing Denied April 1, 1907.

MUNICIPAL CORPORATIONS — TORTS — CONSTRUCTIVE NOTICE OF DEFECT IN STREET— INSTRUCTIONS.

Where, in an action for injuries received by falling over a pile of building stones placed in the street, the evidence showed that, though the particular stones over which plaintiff fell had been placed there only a few hours before injury, other loads had been left unguarded in the same place for three days, continuously

maintaining the obstruction, an instruction that the piling of the last lot was too short a time before the accident to impart constructive notice to the city was erroneous.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by George T. Vance, Jr., by Luella Vance, his next friend, against Kansas City. From an order granting plaintiff a new trial, defendant appeals. Affirmed.

Edwin C. Meservey and Francis M. Hayward, for appellant. Scarritt, Scarritt & Jones, for respondent.

ELLISON, J.

The plaintiff brought this action for personal injury received by him in falling over a pile of rough building stone in one of defendant's streets. The verdict in the trial court was for the defendant. Plaintiff filed a motion for new trial, and it was sustained, whereupon the city appealed.

The facts were in substance as follows: A building was being erected on a lot abutting on the street in question, and a lot of large, rough stone, to be used in the building, was hauled and piled in the street near the sidewalk. Plaintiff, a boy about 10 years of age, was playing in the street with other boys, when, shortly after dark, he ran upon the stone and received the injury of which he complains. The rock had been hauled, perhaps, in different loads; but they, or a portion of them, had been left in the street, unguarded at night, for three days. Late on the evening of the day plaintiff was hurt these stone were piled on the sidewalk space, at the edge of the street proper; and on same evening, perhaps immediately, one or more other loads of stone of the same character were unloaded in the street in the place where the first lot had been, and it was this latter lot upon which plaintiff fell. The trial court instructed the jury that the piling of the latter lot was too short a time before the accident to impart constructive notice to the city.

Undoubtedly the court was right, as an abstract proposition,...