White v. City of Springfield

• Decision Date: 01 March 1915
• Docket Number: No. 1370.,1370.
• Citation: 173 S.W. 1090
• Parties: WHITE et al. v. CITY OF SPRINGFIELD.
• Court: Missouri Court of Appeals

173 S.W. 1090

WHITE et al. v. CITY OF SPRINGFIELD.

No. 1370.

Springfield Court of Appeals. Missouri.

March 1, 1915.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by E. L. White and Stella R. White against the City of Springfield. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Fred A. Moon, of Springfield, for appellant. O. T. Hamlin, of Springfield, for respondents.

FARRINGTON, J.

The plaintiffs own a lot in the city of Springfield, Mo., facing south 50 feet in width on Division street and 180 feet lengthwise on Broad street, on which they have a storehouse and a dwelling house fronting on Broad street. The defendant is a city of the third class. Plaintiffs recovered a judgment against defendant in the sum of $550 as damages alleged to have been occasioned by reason of the defective construction of a cement pavement on Broad street. The jury returned a verdict for $900, but a remittitur of $350 was entered by plaintiffs, and the court overruled defendant's motion for a new trial. The suit was originally brought against the city and V. E. Koch, the contractor who put in the improvement, but was dismissed as to Koch, and judgment went only against the city.

The recovery is based on a petition which charged that:

"In the construction of said roadway and curbing, the defendants negligently and carelessly caused same to be flat or even on the west side of Broad street between Locust and Division streets to such an extent that the water would not run off of said street between said points, but stood in pools and ponds and became stagnant and foul; that by reason of the negligent construction of the improvements aforesaid, and the change in the grade of said street by defendants, surface water from various sources was collected and conveyed on said street in front of the property of plaintiffs and there collected, whereas, prior to said improvements, no surface water collected or remained at plaintiffs' property; * * * and that said curbing and paving along the entire length of said lot was negligently constructed, and since the time of its construction has been negligently maintained in the condition aforesaid, so that the surface water flowing in and along the street from the north and west stops and stands on said street along and beside plaintiffs' property, while prior to said time no surface water was collected and conveyed to plaintiffs' property and permitted to stand and remain at and near, as it does at the present time."

There is no evidence that the defendant in any way changed the grade of the street — other than the incidental leveling of the same in paving — or that it caused any surface water to invade or run on plaintiffs' property.

The plaintiffs' evidence tended to prove that the pavement was so constructed as to have uneven places in it which caused small pools of water to stand in and along the gutter in front of plaintiffs' property. There is no evidence that the damage was caused by the collection of any surface water from up or down the street, but that, owing to the depressions and unevenness in the surface of the gutter and street, the rain that fell in front of plaintiffs' property in the street and along the block would flow from the crown or center of the street to the gutters where such depressions would hold a portion of such surface water, and owing to the unevenness, caused by negligent and faulty construction, these pools would remain until at times the water would become stagnant and at other times it would be frozen.

Here the defendant's evidence tended to show that it did nothing but level the street up to the established grade and surface the street with cement, where earth had been before. This would necessarily prevent the water that fell in the street from percolating through the ground, and such water could only escape by flowing to the gutters and following the grade that was there before the improvement was constructed, or by the process of evaporation. From Locust street to Division street, which is the block plaintiffs' property is on, there is a fall of 1 foot 9 inches. With that much of a fall to the block (which was the grade of the street), a cement pavement and gutter properly constructed would, of course, carry off the water, provided the cement was laid smoothly, and so as not to contain pockets or depressions in which the surface water would collect and be held. The city would not be liable for the consequences of the increased flow of surface water that the pavement required the gutters to carry, provided it caused the cement covering to be laid so as to properly drain the street and so as not to contain pockets. The evidence of plaintiffs, we think, tends to establish the fact, not that there was an insufficient grade to the street in order to drain it, but that there was a negligent laying of the cement to that grade, so as to make the surface of the cement not conform to the grade throughout the block. This would be a negligent construction, and injuries caused therefrom entitled plaintiffs to damages. The evidence shows, however, that these pockets or depressions were at most of slight depth — two to three inches — and the damage from this cause alone is not very great.

The first instruction given by the court at plaintiffs' request does not confine the jury to a finding for plaintiffs on a negligent construction, but is so framed that it authorizes a verdict in favor of the plaintiffs, if the jury believed that ...