Wasson v. City of Sedalia

• Decision Date: 09 January 1922
• Docket Number: No. 13798.,13798.
• Parties: WASSON v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

236 S.W. 399

WASSON v. CITY OF SEDALIA.

No. 13798.

Kansas City Court of Appeals. Missouri.

January 9, 1922.

Appeal from Circuit Court, Pettis County; E. B. Shain, Judge.

"Not to be officially published."

Action by Mary Wasson against the City of Sedalia. Verdict and judgment for plaintiff, and defendant appeals. Judgment set aside, and cause remanded for new trial.

Wilkerson & Barnett, of Sedalia, for appellant.

A. L. Shortridge and W. D. Steele, both of Sedalia, for respondent.

TRIMBLE, P. J.

Plaintiff, while walking west on the brick sidewalk along the south side of Boonville street in Sedalia, a city of the third class, stepped into a ditch, a foot wide and one foot deep, which ran across the sidewalk; the bricks for that width having been removed and the ditch dug for the purpose of draining the adjacent lot. This had been done several months, or, as some witnesses say, a year, prior to the injury, and the ditch was covered by merely laying two boards lengthwise over the ditch and across the sidewalk. These boards had warped, and also had sagged down along the middle or inner edges thereof, till they formed something like a "hog trough." The evidence tends to show that the boards constituting even this insecure covering had either slipped to one side or had been removed entirely for one or two days before the injury. A witness said he noticed on Saturday that the boards were not over the ditch. How long before that they were off is not shown. Plaintiff's injury occurred about 7:30 Monday evening in February, when night had fallen, and the place, not being well lighted, was in partial darkness.

Plaintiff knew of the existence of the ditch and of its board covering, but was not aware of the boards having been moved. Her evidence tends to show that she was proceeding in a prudent and careful manner, having in mind the existence of the ditch covered and in the condition above described, but before she knew it she reached the ditch, and, as it was unprotected, she stepped into it and was severely hurt, receiving injuries to her right hip, right side, and abdomen, a sprain and bruise of her back and right knee, and internal injuries not clearly defined. She was confined to her bed and house for some time, and thereafter up to the time of the trial was compelled to use crutches. The plaintiff recovered a verdict of $3,000, upon which judgment was rendered, and defendant has appealed.

The city's contention that no constructive notice of the defect was shown is based upon the view that the negligence charged is in allowing the ditch to become and remain uncovered by the displacement of the boards. But the petition did not charge the default to lie in the removal of the boards, but in the allowance of the ditch to exist and continue in such condition as to render the sidewalk at that place dangerous and unsafe. We do not wish to be understood as impliedly holding that, if the petition had specified the removal or absence of the boards as the negligence, there would have been no constructive notice shown. While the evidence does not...