Warren v. City of Independence

• Decision Date: 05 February 1900
• Citation: 153 Mo. 593,55 S.W. 227
• Parties: WARREN v. CITY OF INDEPENDENCE.
• Court: Missouri Supreme Court

55 S.W. 227

153 Mo. 593

WARREN v. CITY OF INDEPENDENCE.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

MUNICIPAL CORPORATIONS — DEFECTIVE CROSSING — INJURIES — CITY'S LIABILITY.

Where plaintiff, acquainted with the condition of a wooden sidewalk crossing a dirt road in a city, alleged that she was injured by the city's negligence in permitting mud and water to remain on the crossing, but made no claim of negligence in allowing snow and ice to remain thereon, and it appeared that the city had allowed mud to accumulate on the crossing to the depth of shoe tops in wet weather, and that at the time plaintiff was injured the crossing was also covered with slush, which had frozen and thawed thereon, and plaintiff was injured while attempting to cross in the daytime, the direction of a nonsuit was proper.

Appeal from circuit court, Jackson county.

Action by Margaret A. Warren against the city of Independence. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

L. T. Dryden, for appellant. Paxton & Rose, for respondent.

VALLIANT, J.

Suit for damages for personal injuries, sustained by plaintiff in slipping and falling on a street crossing in defendant city. The negligence charged against the city is: "That at the times mentioned in this petition there was a plank or wooden sidewalk, extending across College street, on the east side or line of Spring street; that defendant carelessly and negligently permitted and allowed earth, mud, or dirt and water to accumulate and remain on College street, on the east side of Spring street, aforesaid, rendering and making said sidewalk unsafe and dangerous for travel." The petition also stated that the crossing was in that condition on the day of the accident, and had been so for a long time, and that the city knew, or, by the exercise of ordinary care, would have known, of the condition; and that, in consequence of the condition, the plaintiff, who is a woman 60 years of age, in attempting to pass over the crossing, using due care, slipped, and fell, and received serious injuries. The answer traverses the allegations of negligence, and pleads that plaintiff was guilty of negligence which contributed to her injuries. Plaintiff's reply denied that she was negligent. The cause came on for trial before the court and jury, and upon the close of the testimony on the part of plaintiff the court, at the request of the defendant, gave an instruction to the effect that the plaintiff was not entitled to recover, whereupon a nonsuit with leave was taken; and, after ineffectual effort to have it set aside, the plaintiff brings this appeal, the sole question for review being, was the plaintiff's evidence sufficient to require the court to submit the case to the jury?

Although the word "sidewalk" is used in the petition, yet the petition, as well as the evidence, shows that it was a street crossing, and not a sidewalk, on which the plaintiff fell. The evidence tended to show that it was a wooden crossing over College street at its intersection with Spring street. College street, at that point, is highest in the middle, sloping on each side to the gutter; and the wooden crossing, following the form of the street, was likewise highest in the middle, and sloped with the grade of the street to each side. The crossing was well constructed. It was at the foot of a hill, and, the street being only a dirt road, neither paved nor macadamized, there was always mud on the crossing when there was wet weather. Some of the witnesses said the mud was generally shoe-top deep all along the crossing, and had been so for a year or two prior to the accident. This mud was carried there by wagons crossing, and was also washed down from the...