Williamson v. Mullins

• Decision Date: 04 October 1915
• Docket Number: No. 11585.,11585.
• Citation: Williamson v. Mullins, 180 S.W. 395 (Mo. App. 1915)
• Parties: WILLIAMSON v. MULLINS.
• Court: Missouri Court of Appeals

180 S.W. 395

WILLIAMSON v. MULLINS.

No. 11585.

Kansas City Court of Appeals, Missouri.

October 4, 1915.

Rehearing Denied November 22, 1915.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

"Not to be officially published."

Action by David Williamson against William Mullins. Judgment for plaintiff, and defendant appeals. Affirmed.

Fyke & Snider, of Kansas City, for appellant. Oldham & Henderson, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff, at night, fell into an open ditch dug by defendant for a public sewer defendant was constructing under contract with Kansas City, and sustained personal injuries, which he alleges were caused by defendant in leaving the ditch (which was in a public street) unlighted and unguarded. A verdict signed by nine jurors was returned for plaintiff for $2,333 and, following the overruling of his motion for a new trial, defendant appealed.

The injury occurred January 4, 1913, about 10 o'clock p. m., at a point where Swope Parkway, a public street in Kansas City, would cross Fiftieth street if the latter street were opened for travel. Swope Parkway was paved, and was a much traveled thoroughfare. The Swope Park line of the street railway system is on the west of the parkway, and the sewer in question was being laid in the space between the paved roadway and the car tracks. Defendant, the contractor, was using a Potter trench machine, which was about 280 feet long, and consisted of an engine at one end and an elevated track over and along the ditch, upon which carrier cars were moved back and forth by a cable attached to and operated by the engine. These cars were used to carry away dirt and rock excavated from the ditch and to carry materials to be used in constructing the sewer and filling the ditch.

Plaintiff, a laborer, alighted from a car on a branch street car line which had its terminus at Fiftieth street and Swope Parkway on the east side of the latter street. He intended to transfer to a north-bound Swope Park car, and when he saw one approaching, crossed the Swope Park roadway and, reaching the space between it and the car track, proceeded across that space, when he fell into the open, unguarded, and unlighted ditch, and was injured.

The evidence relating to the subject of whether or not the ditch was unbarricaded and unlighted is contradictory, but there is substantial evidence supporting the contention of plaintiff that there was no barricade, and that the nearest light defenda...