95 Mo. App. 188 | Mo. Ct. App. | 1902
This is an action to recover damages, the constitutive facts of which are alleged in the petition to be that one William M. Hall was. the owner of the premises numbered 818 Walnut street in Kansas City; that he had caused an areaway to be excavated under the sidewalk adjoining said building in front; that the four feet of the sidewalk adjoining the building was constructed of iron plates set in iron frames and
The answer contained a general denial with’ which was united the plea of contributory negligence.
The main facts, as disclosed by the evidence and about which there is very little dispute, are that Mr. Hall excavated the sidewalk in front of his building to the depth of sixteen feet; that he covered the excavation with stone up to about three and a half feet of the building line and the intervening three feet and a half space he covered with a sidewalk made of iron and glass constructed in this manner: a frame of iron seven feet long by three and a half wide was set in the sidewalk resting on the east side in a groove cut in the stone composing the balance of the walk and on the west side, next to the building, upon an iron girder running parallel with the front of the building. The entire sidewalk in front of the building was constructed in this
At the time stated in the petition the plaintiff was standing on the sidewalk so constructed as aforesaid, when suddenly and without warning it gave way, whereby he was precipitated into the areaway below and seriously injured, the two north plates and the crossbar on which they in part rested falling in. The latter broke off close to the sides of the frame, and the flange on the frame next to the building broke off for about eight inches commencing at the point where the crossbar joined the frame and extending to wards, the northwest corner of the frame. As originally constructed the frame and crossbars were all moulded together.
About a year before the happening of the injury complained of here, the frame was cracked clear across the corners at the “miter joints” and these cracks could be seen by any one while standing on the sidewalk. About that time Mr. Hall had the sidewalk examined and had stopped the cracks in the frame with oakum and pitch to prevent leakage and it was then discovered, by those doing the work, that a crossbar, ten or twelve feet south of the place where the accident happened, was broken... This had no connection with the break causing the injury, for that crossbar and that part of the sidewalk did not give way. This crossbar was allowed to remain in its broken state until after the injury, when it was patched up with wrought iron. The frame, though cracked at the four corners, as already stated, did not fall at
There was no evidence tending to show that the defendant had actual notice of the cracked or broken conditions of the flanges on which the plates rested. The defendant’s sidewalk inspector had not, for at least a year before the accident, inspected the sidewalk along there. It is in effect conceded that an inspection from the surface of the sidewalk would not have disclosed the crack or break in the flange, but that it could have been discovered by lifting the plates or by an examination made from the areaway below.
There has been two trials and in each of which the plaintiff had judgment. The first case was taken by defendant to the Supreme Court where the judgment was reversed and cause remanded. The judgment on the second trial being for only three thousand dollars, we have cognizance of the appeal therefrom. In looking at the report of the first case (156 Mo. 16) in connection with the record in this and we find the two cases to be the same except in the particulars presently to be noticed. In the former appeal, the court in reviewing it says: ‘ ‘ The crack or. break in the flange is called partly an old break from the appearance it presented after the accident, but there is no evidence whatever as to how long it had existed before the accident. . . . Instruction numbered one given for plaintiff authorized a verdict for him if the flange was rusted, cracked or broken,” and if the defendant “failed to use reasonable care and precaution to keep said portion of said sidewalk in repair, but it did not require the jury to find whether or not the city had actual knowledge of the defect, nor even to find that the defect had existed for such a length of time before the accident that the city could have ascertained the defect by the use of ordinary care.” It is clear that but for these two defects in the case the judgment
Turning again to the evidence and we find that the frame, on the flanges of which the plate that fell had rested, was cracked clear across its four corners, and as the flanges were a part of it they, too, were cracked to the same extent. These cracks were each of the length of four inches, and the four corners of that north and that south of it were in the same cracked condition so that there was forty-eight inches or four feet of cracks or breaks that were plainly observable from the surface of the street. And it was shown by the uncontradicted evidence that this condition had existed for more than a year prior to the accident.
It is the well-settled law of this State that a city is bound to keep its sidewalks in a reasonably safe condition for public use and that it is liable for injuries received from defects therein of which it had actual notice or which had existed for such length of time prior to the accident as by the exercise of ordinary care it could have ascertained and which it had reasonable time to remedy. Roe v. Kansas City, 100 Mo. 190; Carvin v. St. Louis, 151 Mo. 334; Baustain v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16. According to this rule we think the evidence was prima facie sufficient to support this part of the plaintiff’s case. Where, as here, the uncontradicted evidence shows that a defect in a sidewalk, like that shown in this case, has been for more than a year previous to the accident plainly visible from the surface of the sidewalk, a jury would be fully justified in imputing notice of such defect to the city. After such a length of time, ignorance of the existence of such a defect would be inexcusable.
Notice of the cracks in the frames, which latter were a part of the sidewalk, was clearly imputable to the defendant and was amply sufficient to put it upon
G. E. Rider, twenty years a pattern-maker and designer in iron structural work, and whose duties required him to figure on the strength of metal, testified
Ira Gr. Hedrick, a civil engineer and especially engaged in structural steel work and bridge building, testified that he was a graduate in the civil engineering department of the University of Arkansas and of Magill University at Montreal, Canada; that his firm did the structural steel work for the Convention Hall of Kansas City; that they had built three bridges over the Missouri river and other bridges, and had otherwise a large experience in this line of work. Being
Orange J. Hill testified that he had never known of “crossbars or portions of the flange around where-the crossbars joined the frame, to be broken without any breaks in the corners of the iron frame.
H. F. Mitchell, a witness for the city, a pattern maker of the Riverside foundry, testified that the breaks at the corners would weaken it, also, that the breaks at the corners threw an additional stress upon the crossbars, that they would give it (crossbar) less
It thus appears that the broken corners unquestionably weakened the flange upon which rested the plates that fell. "What was the proximate cause of the collapse of the pavement and consequent injury of the plaintiff? It'is true, there was disclosed by the collapse a rusty crack in the flange where it gave way, but as to when this was made it did not appear. It may be inferred that, as the strain on the flange caused by its vertical load was about equal everywhere, the crack was caused by the breaking of the corners of the frame which increased the strain at that point, as was shown by the opinion of the experts. When the frame, its size, dimensions, construction, its material, how placed, its bearings, vertical load and supports, was-described to the experts, illustrated by models, drawings, etc., they gave it as their unanimous opinion that the breakage in the corners of the frame “relegated” the strain to the point where the break occurred in the crossbar and flange, and the consequent collapse of the pavement. The evidence tended to prove that the cracks in the corners of the frames extended through the flanges at that point. These cracks were nohe the less cracks because at the corners of the frames than because at and near where the crossbar joined the frame, and it will not, therefore, do to say that such evidence contradicts the allegations of the petition and for that reason is incompetent. Under -the rule applicable where a court is required to determine whether or not a prima facie case has been made out, the plaintiff is entitled to every fair and reasonable inference
The defendant contends that the court erred in-permitting the plaintiff to introduce evidence tending to prove the condition of the frames in front of the Hall building north and south of the one. in question here. The evidence disclosed that the six frames in front of said building were all just exactly alike and were put in by the same mechanic. They were of the same material and construction, had a like support and formed but one structure. Under the numerous authorities cited in plaintiff’s brief, this evidence, we think, was clearly admissible. It is true, that one of the other frames referred to in the evidence was put in two or three years later than the one which fell, but considering the durability of the materials out of which they were all constructed, we do not think this difference in time was such as to require the exclusion of the evidence touching their condition. Kuntsch v. New Haven, 83 Mo. App. 174, and other cases cited by plaintiff.
Nor do we discover any error in the action of the court in permitting the expert witness (Hedrick) to answer the hypothetical question asked him by the plaintiff by which it was sought to elicit from him his opinion as to what effect the breaks in the corners of the frames would have on the carrying strength of the sidewalk. This question was proper under the ruling in Buckley v. Kansas City, 156 Mo. loc. cit. 25, and Hurst v. Railway, 163 Mo. loc. cit. 321. The question embraced every material fact that had been, up to that time, proved, unless it was that the cracks in the flange where the crossbar joined the frame did' not extend within several inches of the corner of the frame, which
The court, by elaborate instructions, submitted every conceivable phase of the case presented by the pleadings and evidence, and no complaint is made of the action of the court in that regard except that defendant insists that its instruction number ten should have been given. It told the jury “that though it may find and believe from the evidence that by reason of the character of the corners of the iron frame an additional strain was placed upon the crossbars, still if it found that such fact was not generally known to persons of ordinary intelligence and prudence, then its verdict must be for the defendant city. It contains an incorrect expression of the law and was rightly refused. There was no such issue in the case as it submitted. Had it told the jury that if it found that the additional strain cast upon -the crossbars by reason of the breakage in the corners of the frames, was a fact, though proved that it could not have been discovered by the defendant or its street and sidewalk inspector by the exercise of reasonable care, it would have been less objectionable.
Tbe judgment, we think, is for tbe right party and it will accordingly be affirmed.