Wilkerson v. City of Sedalia

• Decision Date: 20 May 1918
• Docket Number: (No. 12853.)
• Citation: 205 S.W. 877
• Parties: WILKERSON v. CITY OF SEDALIA.
• Court: Missouri Court of Appeals

205 S.W. 877

WILKERSON v. CITY OF SEDALIA.

(No. 12853.)

Kansas City Court of Appeals. Missouri.

May 20, 1918.

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

"Not to be officially published."

Action by Jessie I. Wilkerson against the City of Sedalia. Judgment for plaintiff, and defendant appeals. Affirmed.

R. S. Robertson, of Sedalia, for appellant. W. 13. Steele and A. L. Shortridge, both of Sedalia, for respondent.

TRIMBLE, J.

Plaintiff sued to recover damages arising from a fall he sustained upon an alleged defective sidewalk, whereby his leg was broken. The jury returned a verdict in his favor for $600, and defendant appealed.

The fall occurred on the principal business street of the city, in front of a clothing store, and at a point where there was a great deal of travel, and at a time when many people were using the walk. Plaintiff was a cripple, and walked with crutches. He was able to go about the city, and ran a lunch stand therein. He had stopped on the sidewalk in front of the clothing store to speak to a friend, and started to move on, when one of a number of passers-by, not looking where he was going, brushed against plaintiff, so that he had to step aside, and put his crutch to the ground, and out to that side, to keep from falling. The end of his crutch went into one of the holes in a framework of iron, constituting what is ordinarily known as "bull's-eye" pavement, being round, lens-shaped glasses set close together in the framework, for the purpose of letting light through the pavement into the basement or areaway underneath the sidewalk. The crutch went down to a considerable depth through the hole, causing plaintiff to fall in a twisted position and breaking his leg.

The walk at this point was 9½ feet wide, including a 6-inch curb. The iron framework was 3 feet wide, and the boles therein commenced about 5 inches out from the building, and extended from there 31 inches out into the walk. To let air into the basement, a large number of these lenslike bull's-eyes, or round glasses, had been knocked out by the occupant or owner of the building. The holes thus left were about one-half an inch apart in the framework, and were each 17/8 inches in diameter on the top surface, with a little flange at the bottom surface to hold the glass when inserted in the hole. At the north end of the framework the glasses had been knocked out for a distance of 4 feet, then for a space of about a foot the glasses were in place, having been allowed to remain, then for the space of about 1½ feet the glasses had been knocked out. In front of the entrance to the store was a place 3 feet wide where the glasses were in, apparently left there because that was directly in front of the entrance. South of said entrance there was another space, 4 feet long, where the glasses had been knocked out.

The main point urged for reversal is that the evidence does not disclose that the sidewalk was not reasonably safe for persons traveling thereon in the ordinary modes; that the most it shows is that by reason of a hole in the sidewalk one walling with a cane or crutch might put the end thereof in a hole and get a fall, but that otherwise the walk was reasonably safe. In Bethel v. City of St. Joseph, 184 Mo. Anp. 388, 171 S. W. 42, this court held that the object to be secured in requiring the city to take care of its streets "is the reasonable safety of travelers, considering the amount and kind of travel which may fairly be expected on the particular street," and that, while the city is bound to exercise ordinary care to keep its streets reasonably safe for travel in any general and usual mode, including that of bicycles, yet it is not:fable for a failure to make special provisions, required only for the safety of persons so "traveling." The same, we think, should be said with reference to persons traveling upon crutches, or with a cane. The city ought not to be required to keep its walks in such perfect condition that a pedestrian, using a cane or a crutch, would be in no danger of putting it into a small hole, or crevice, or the interstices which unavoidably will appear between stones or boards. In Hardin v. City of Jackson, 137 Mich. 271, 100 N. W. 389, 66 L. R. A. 986, the Supreme Court of Michigan held that a city is not liable for injuries to a pedestrian, caused by a cane, upon which he supported himself, going through a small hole or doty place, where the sidewalk was in reasonably safe condition for pedestrians not compelled to use canes. The court said:

"There is no doubt that the Legislature authorized sidewalks for the use of the lame and aged, as well as for the able-bodied and young; but we know that the former classes should, and usually do, use greater care than the latter find necessary. A man walking on crutches knows the common method of building sidewalks. He knows that edges of the boards decay and knots drop out, and instinctively he learns to avoid putting his crutches in holes or cracks. We think it is not negligence for a city to use its plank walks, although they have cracks and knotholes, through which a cane or crutch would go, acting upon the expectation that the traveler must know that they are practically unavoidable, and are common to all sidewalks, long before they are sufficiently worn to justify pulling them up and building anew. The city has a right, in the maintenance of its walks, to expect a reasonable degree of care from all persons; and, when its walks are safe for the ordinarily prudent use, there is no negligence."

But, while we have no quarrel with the ruling there announced, we think there is much difference between the facts of that case and this. In the case at bar, the defect did not consist of a single, or even an occasional, hole originating naturally and on account of the general composition and construction of the sidewalk, but consisted of a series of holes each nearly 2 inches in diameter, set closely together and covering a considerable portion of the area of the sidewalk, and caused by an intentional change in the walk, the composition of which was such as would not naturally disintegrate into holes. With these glasses thus knocked out over a considerable area of the sidewalk, each hole of a size large enough to hold the heel of a lady's shoe, or large enough to catch the heel of a man's, for that matter, we are not willing to say there was no evidence from which the jury could say the walk was not reasonably safe for pedestrians in the usual and ordinary modes of travel. It would seem that the fact...