Williams v. City of St. Joseph

• Decision Date: 17 June 1912
• Citation: 148 S.W. 459,166 Mo.App. 299
• Parties: WALTER E. WILLIAMS, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

148 S.W. 459

166 Mo.App. 299

WALTER E. WILLIAMS, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

June 17, 1912

Appeal from Buchanan Circuit Court.--Hon. W. K. Amick, Judge.

REVERSED.

Cause reversed.

W. B Norris, O. E. Shultz and Phil A. Slattery for appellant.

K. B Randolph for respondent.

OPINION

BROADDUS, P. J.

The object of this action is to recover damages against the defendant city for injuries plaintiff, a boy over twelve years of age, received as the result of having fallen into an excavation on Twenty-second street. The evidence showed that that part of the street where plaintiff fell into the excavation is mostly unimproved, there being no sidewalks and no paving. The excavation in question extends into the street about ten feet. Persons passing along the street used any part of the same that was convenient, but at the point in question there was a path used on the west side by pedestrians for a short distance. Plaintiff's bicycle while he was riding along this path, was, for some cause not stated, deflected from its course and he was thrown into the excavation and injured. It was shown that the excavation had been made by a man by the name of Roth some four or five years previously, who, it is assumed, was one of the city's contractors. The petition alleges that plaintiff was riding on his bicycle "in a path usually used by pedestrians."

The city set up, among others, the defense of one of its ordinances making it unlawful for any person over the age of twelve years to ride a bicycle or similar vehicle "upon or over any sidewalk, by-way, or path used as a public way for pedestrians in the city of St. Joseph."

Plaintiff gave the required notice to the city of his injury and other particulars required in such cases, but failed to state that such injury was suffered in Buchanan county, Missouri, but, as the case will be disposed of on another point, the omission is not deemed material. The said ordinance of the city was offered and received in evidence, but not read to the jury. Various instructions were offered and given for each side of the controversy, but, as the result rests upon the one offered by defendant as a demurrer to plaintiff's case, it is not necessary to mention them. The finding and judgment were for plaintiff from which defendant appealed.

The plaintiff upon his own showing was not entitled to recover and defendant...