Young v. City of St. Joseph

• Decision Date: 02 April 1928
• Docket Number: No. 16244.,16244.
• Citation: 4 S.W.2d 1104
• Parties: YOUNG v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

4 S.W.2d 1104

YOUNG v. CITY OF ST. JOSEPH.

No. 16244.

Kansas City Court of Appeals. Missouri.

April 2, 1928.

Error to Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be officially published."

Action by Margaret Young against the City of St. Joseph. Judgment for plaintiff, and defendant brings error. Affirmed.

R. M. Duncan, W. B. Norris, Jr., and Harry J. Cooney, all of St. Joseph, for plaintiff in error.

Miles Elliott and Duvall & Boyd, all of St. Joseph, for defendant in error.

WILLIAMS, C.

This is a personal injury case against the city of St. Joseph, Mo., and comes on a writ of error from the circuit court of Buchanan county. The petition counts upon negligence by reason of an icy sidewalk. The answer was a general denial and a plea of contributory negligence.

The evidence shows that the injury complained of occurred on the first day of January, 1925. Plaintiff lived on Seneca street which sloped sharply from her home, 2917, to 29th street. The sidewalk along the north side of Seneca street was elevated two or three feet, and the buildings were situated upon a high terrace. Plaintiff lived about 250 feet from the place where she fell. The point where plaintiff fell was much used by pedestrians. About the middle of December, preceding the accident, there had been snow and sleet on the sidewalk. The snow had drifted on the sidewalk where plaintiff was injured. In that portion of the city sidewalks had been generally cleaned off and were free from snow and ice. However, in front of the property where plaintiff was injured, which was 2915 Seneca street, and in front of a vacant lot next to said property, the sidewalk was entirely covered with snow and ice. There was a path that had been worn down by pedestrians in about the center of the sidewalk. The path was rough and uneven, having projections from two to five inches high. No cinders or ashes had been put in this path and no attempt had been made to remove or alleviate the dangerous condition. About 1 o'clock on January 1st, plaintiff left her home going in a westerly direction along the walk in front of 2915 Seneca street. Her destination was 24th and Lafayette streets. When she reached a point in front of 2915 Seneca street she slipped on the ice and fell. Her injuries were severe. After a verdict and judgment of $1,500, defendant appeals, but thereafter dismissed the appeal and sued out a writ of error. No point is made as to the size of the verdict.

The first point in appellant's brief is that instruction B, in the nature of a demurrer, should have been given. In discussing this question we must do so from the standpoint that the jury has resolved every controverted question of fact in favor of the plaintiff. Englehart v. Serena et al. (Mo. Sup.) 300 S. W. 268.

It is argued that the plaintiff failed to prove any actionable negligence on the part of the city. The line of argument advanced by appellant is that the mere fact that the ice was rough and bumpy or uneven was not negligence. We think that contention is well answered by the case of Suttmoeller v. City of St. Louis (Mo. Sup.) 230 S. W. 67, loc. cit. 69, where it was held that a municipality's liability for injuries resulting from ice-covered walks is not predicated on the character of the ice formation, but on the negligence of the city, and that the character of the formation may, or may not, be the controlling element in determining the question of negligence in a particular case. This rule is well established. Kiefer v. City of St. Joseph (Mo. Sup.) 243 S. W. 104; Reno v. City of St. Joseph, 169 Mo. 642, 70 S. W. 123.

Defendant relies upon the case of Albritton v. Kansas City, 192 Mo. App. 574, 188 S. W. 239. We think this case merely holds that uneveness and roughness in snow or ice upon sidewalks is not, of itself, an actionable defect. We think the other cases relied upon...