Wolf v. Kansas City

• Decision Date: 18 December 1922
• Parties: LOUIS WOLF v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

246 S.W. 236

296 Mo. 95

LOUIS WOLF v. KANSAS CITY, Appellant

Supreme Court of Missouri, First Division

December 18, 1922

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Affirmed.

E. M Harber and Francis M. Hayward for appellant.

(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence asked at the conclusion of plaintiff's testimony, and asked again at the conclusion of all the evidence in the case. (a) Because it was impossible to say whether plaintiff fell on the smooth or rough ice. Hatch v. Elmira, 142 App.Div. (N.Y.) 174 126 N.Y.S. 863; Reno v. St. Joseph, 169 Mo. 342; Rogers v. Packing Co., 180 Mo.App. 227; Goransson v. Ritter Conley Mfg. Co., 186 Mo. 300; Modlagl v. Iron & Foundry Co., 248 Mo. 287; Tobin v. Waterloo, 131 Iowa 75. (b) Because no statutory notice was served on the Mayor of Kansas City within ninety days after the time of the alleged accident. Reid v. Kansas City, 195 Mo.App. 457; Hackenyos v. St. Louis, 203 S.W. 986; Reese v. St. Louis, 216 S.W. 315. (2) The court erred in overruling defendant's motion in arrest of judgment. Reese v. St Louis, 216 S.W. 315.

Maurice Weinberger, Darius A. Brown and John G. Park for respondent.

(1) Defendant's demurrer to the evidence was properly overruled. (a) There was ample evidence of the rough, uneven and ridgey condition of the ice and snow to warrant submission to the jury. Reno v. St. Joseph, 169 Mo. 642. A demurrer to the evidence should not be sustained if there is sufficient evidence to take the case to the jury. Reno v. St. Joseph, 169 Mo. 657. (b) The city's negligence was responsible for plaintiff's injury even though he fell on smooth ice. Reedy v. Brewing Assn. and City of St. Louis, 161 Mo. 523; Livingston v. St. Joseph, 174 Mo.App. 638. (2) The petition, filed within ninety days, was sufficient and substantial compliance with the statute. Hackenyos v. St. Louis, 203 S.W. 986; Murphy v. Seneca Falls, 57 A.D. 438, 67 N.Y.S. 1013; Connor v. Salt Lake City, 28 Utah 428; Blair v. Riddle, 3 Ala.App. 292; Reno v. St. Joseph, 169 Mo. 642; Sullivan v. City of Syracuse, 29 N.Y.S. 105; Murphy v. City of St. Paul, 130 Minn. 410; City of Lincoln v. O'Brien, 56 Neb. 761; Purdy v. New York, 110 N.Y.S. 822, 126 A.D. 320; Comstock v. Schuylerville, 124 N.Y.S. 92, 139 A.D. 378; Brenner v. Chicago, 182 Ill.App. 348. (3) The date of the injury was sufficiently alleged. Boyd v. Kansas City, 291 Mo. 622; Morrill v. Kansas City, 179 S.W. 759; 21 Ency. Pl. & Pr. 814; Burnham, Hanna, Munger & Co. v. Jacobs, 66 Mo.App. 628; Mesker v. Cutler, 51 Mo.App. 341; Lesinsky v. Great Western Dispatch, 14 Mo.App. 598; State to use of Harl v. Martin, 8 Mo. 102; Martin v. Miller, 3 Mo. 136; Block v. O'Hara, 1 Mo. 145; 8 C. J. 893, 905; 22 Cyc. 1575. On the allegation of "on or about" see Mitchell v. Penfield, 8 Kan. 186; National Wall Paper Co. v. Insurance Corporation, 70 N.Y.S. 124, 60 A.D. 222; State v. Harp, 31 Kan. 496; Kerr v. Blair, 47 Tex. Civ. App. 406; Blair v. Riddle, 3 Ala.App. 292. (4) Any error in naming the day may be cured by amendment here. R.S. 1909, sec. 2120; Witte Iron Works v. Holmes, 62 Mo.App. 377; Mueller v. Kaessman, 84 Mo. 318; Crispin v. Hannover, 86 Mo. 160; Weil v. Simmons, 66 Mo. 617; Cruchen v. Brown, 57 Mo. 38; Hemelrich v. Carlos, 24 Mo.App. 264; Muldrow v. Bates, 5 Mo. 214; Habel v. Railway, 140 Mo. 159, 165; Chandler v. Railroad, 251 Mo. 592, 603.

BROWN, C. Small and Ragland, CC., concur.

OPINION

BROWN, C. --

This cause was instituted in the Circuit Court for Jackson County on March 20, 1918, to recover damages on account of a broken leg sustained by a fall on Fifteenth Street in said city. That portion of the petition important to be considered in this appeal is as follows:

"That on or about the twenty-seventh day of January, 1918, at or about six-thirty o'clock p. m., the plaintiff was walking in a westerly direction upon the south sidewalk of said street, and in front of and near the premises located at Number 1113 East Fifteenth Street, in Kansas City, Missouri; that at the aforementioned time, said sidewalk at the aforementioned place was not in a reasonably safe condition for pedestrians to walk upon; that by reason thereof plaintiff slipped and fell while walking upon said sidewalk at the aforementioned time and place; that said sidewalk at the aforementioned time and place was not in a reasonably safe condition because there was upon said sidewalk at the aforementioned time and place snow and ice in a rough, rigid, and corrugated mass, and also strips of lumber and pieces of glass; that defendant knew, or by the exercise of ordinary care and diligence could have known, of the aforementioned unsafe condition of said sidewalk and could have removed said snow, ice, lumber and glass in a reasonable time before the plaintiff slipped and fell as aforementioned.

"As a natural and proximate result of said slipping and falling, plaintiff has suffered an oblique fracture of the left tibia at the juncture of the middle and lower third and a fracture of the left fibula through the upper third. Said injuries are in their nature serious, permanent and progressive. As a result of said injuries plaintiff has suffered, still suffers, and will continue to suffer great physical pain and mental anguish; his nerves and nervous system were shocked and injured; he has been confined to a hospital for many weeks, is now confined to his bed and will be confined to his bed for many weeks. As a result of said injuries he has lost earnings from his work and will continue to lose earnings from his work in the future; he has incurred obligations for hospital, medical, and surgical attention and is reasonably certain to incur such obligations in the future."

He laid his damages at $ 6000, for which he asked judgment.

The answer is a general denial and the plea of contributory negligence in the failure of the plaintiff to use his eyes and other senses.

The evidence introduced at the trial shows that in the early morning of January 12, 1918, there was a fire in the International Garage on the south side of Fifteenth Street which did considerably damage to the building and was finally extinguished without destroying it. The weather was very cold, the thermometer showing sixteen degrees below zero, and water thrown upon the fire fell upon the walk and congealed with fragments from the building, including two-by-four scantling, brick, glass and fragments from the wood structure of the windows. The ice was unevenly distributed and rigid, having holes or depressions several inches deep. The garage not having been completely destroyed, its use was continued. One of the entrances was cleared, but the remainder of the ice, snow and debris was allowed to remain, although the evidence shows that on two occasions the street department had been requested to clear it away. At the time of the fire and for sometime afterward there was considerable snow on the ground. On January 27th, the day of the accident, a snow fall began, continuing until midnight. About two inches had fallen and it was still snowing at about six-thirty o'clock when the plaintiff, walking along the sidewalk past the International Garage, slipped on the rough ice and fell, breaking both bones of his leg below the knee. The fracture was very serious, causing such a displacement that the ends of the bones slipped past each other, and to hold them in place an incision was made in the leg and metal splints were screwed to the bones. He was confined in the hospital and at his home for several months, and suffered greatly. The facts proved will be further noticed as necessary.

The defendant, at the close of plaintiff's evidence and again after all the evidence was in, asked a peremptory instruction for a verdict in its favor, which was refused by the court, which, at the request of plaintiff, instructed the jury as follows:

"The court instructs the jury that it was the duty of defendant Kansas City to exercise reasonable care to keep its sidewalks in a reasonably safe condition for travel.

"You are therefore instructed that if you find and believe from the evidence that on the 27th day of January, 1918, Fifteenth Street was a public thoroughfare of Kansas City, Missouri; that the sidewalk in front of and near the premises located at Number 1113 East Fifteenth Street on said 27th day of January, 1918, was not in a reasonably safe condition because there had accumulated upon said sidewalk at said place snow and ice in a rough, ridgy and corrugated mass so as to become an obstruction, if so; that defendant, Kansas City, knew, or by the exercise of ordinary care could have known of, such unsafe condition, if any, in a reasonably sufficient time to have removed said snow and ice by the exercise of ordinary care in a reasonable time before plaintiff was injured, and failed to do so; that plaintiff was injured as the direct result of said condition of snow and ice on said sidewalk; and that plaintiff at the time was exercising ordinary care for his own safety, then your verdict will be for plaintiff and against defendant."

There was a verdict and judgment for $ 2250, from which this appeal was prosecuted to the Kansas City Court of Appeals, by which it was certified to this court.

I. The defendant insists that it was error to refuse the peremptory instruction asked by it because the evidence failed to show that the condition of the sidewalk which caused the injury to plaintiff was such that it imposed upon the defendant the duty of correcting or removing it. The theory is, as we understand it, that the burden rested upon plaintiff to prove affirmatively that the exact spot upon which his foot slipped when he fell was rough and corrugated and not merely...