Fairgrieve v. City of Moberly

39 Mo. App. 31 | Mo. Ct. App. | 1890

Ellison, J.

This action is for personal injuries alleged to have been received by plaintiff at a street crossing in the city of Moberly. The negligence charged against the city is an improper construction of a crossing, by building it only twenty-four inches wide with “very slanting aprons” on each side. And leaving timbers alongside of and very near the crossing; as well as also leaving a ditch under the crossing. The injury is charged to have happened by plaintiff slipping off of the slanting apron with her left foot, which ran down between the crossing and the timber’s and that, while her foot and leg were between the timbers and crossing, she fell across the timbers and into the ditch.

■The evidence showed the crossing to have been about twenty inches wide on the level or top part, with slanting aprons on either side thus :

“That the whole crossing was three feet, five inches wide. That the ditch was near the sidewalk and ran with the street, operating as a gutter to carry off water, and that its bottom was from fourteen to nineteen inches below the top of the crossing. And that some scattering timbers were left in the street alongside of and near the crossing at this point.” The testimony of plaintiff herself as to the accident was that she was walking on the crossing and that she slipped because of it being wet; that she slipped on the level part of the walk and not on the slanting part. That she walked on the level part and did not step on the slanting part, nor did she step very close to it; that her foot went down between the crossing and timbers and she fell over backwards. Other evidence in her behalf showed her foot to have remained caught between the timbers and crossing as she fell.

An ordinance in relation to the width of sidewalks along the sides of the streets at and near this crossing was admitted over defendant’s objection. The ordinance was for sidewalks only, and did not relate to crossings. We are not able to see what light this ordinance would throw on the question of negligence in the construction of a crossing. Its effect may have been to confuse the minds of the jury and to lead them to believe the crossing should have been of the same width as the walk.

Instruction number 1 for plaintiff based her right to recover on her injury resulting from slipping on the crossing and being “precipitated into a ditch,” There was no evidence showing the injury to have resulted from falling into the ditch.

Instruction number 2, for the plaintiff, based her right to recover on her injury resulting from slipping and falling “among or on (the) timbers,” notwithstanding the crossing was properly constructed. There was evidence tending to sustain this instruction.

We are unable to discover anything in the evidence, connected with the charge in the petition, tending to sliow negligence on tlie part of defendant in constructing the crossing. It is charged that it had “very-slanting aprons” on which plaintiff slipped. It is apparent, of course, that these “aprons” were placed on the sides of the crossing proper, in order to let carriages and other vehicles over with as little injury and inconvenience as may be, and that,’instead of being negligence in the city to so place-them, it was prudent it should do so. As to the width of the top part of the crossing, there is nothing, whatever to indicate that it was not ample to accommodate pedestrians, especially a single one, in open day. The gutter or ditch of itself was no inducement to plaintiff’s fall and there does not appear to be anything developed by the testimony to show that it was negligence in the city to construct the crossing across it. It was the drain on the side of the street, which, at the bottom was perhaps not more than ten or twelve inches below the surface of the street.

' There was some reference made at different parts the testimony as to there being a slope or fall in the crossing of two feet from one side of the street to the other on account of the genera] topography of athe street. If this was intended as proof of negligence, it should not have been allowed, for the reason that the particulars of the negligent construction are set out in the petition, and this is not one of them. Price v. Railroad, 72 Mo. And, furthermore, such slope or grade in a sidewalk or crossing ought certainly not to be held to be negligence when made necessary by the lay of the ground or street. Schroth v. City of Prescott, 63 Wis. 652; Grossenbach v. City of Milwaukee, 65 Wis. 31, and cases cited. If ’sidewalks, crosswalks or streets are be required to be made level and without incline grade, regardless of the topography, but few towns cities could be built. The remark made as to this branch of the case when it was here before was not in the light of the evidence as to the nature of the ground, as is now shown. The same qualification, for the same reason, will apply to what is said of the eleventh instruction in that case. If the crossing, be not defective or improper, the fact that it is made temporarily slippery from natural causes, such as rain, will not be charged to the fault of the city. Grossenbach v. Milwaukee, supra.

Aside from these considerations, it appears that plaintiff did not slip by reason of the “aprons.” She states she did not step very close to the apron, but that she slipped on the level part. Thus the particular cause of the accident as specified by plaintiff’s petition fails of proof. It is evident from the testimony that the only matter of negligence to submit to the jury is that of leaving scantlings near to, and alongside of, the crossing, and that plaintiff’s case is an accidental slipping on the crossing, whereby she fell on, or among, the timbers in such way as to work her an injury. The petition should be amended so as to set out the real cause of action as made by the testimony, that it may be distinctly seen what the complaint is.

We are of the opinion that, notwithstanding the crossing was properly constructed, if plaintiff, while in the exercise of ordinary care, accidentally slipped and fell into, among or upon timbers which had been negligently left along the side of, and so near, the crossing as to inj ure a pedestrian as the result of such accidental falling, the defendant would be liable, provided the injury would not have happened but for the presence of the timbers in such proximity to the crossing. Palmer v. The Inhabitants of Andover, 2 Cush. 600.

We are inclined to the opinion that slipping and falling off of a slippery walk, though properly constructed, is not one of those accidents whose occurrence is so rare, unexpected and unforeseen as to shut off a municipality’s responsibility for negligently leaving dangerous material in such proximity as to cause injury from such accident.

This cause was here once before and may be found reported in 29 Mo. App. It was then remanded chiefly for the reason of improper conduct of the jury in only •assessing plaintiff’s damages at one dollar. On retrial, the jury appear to have gone somewhat to the other extreme and assessed her damages at two thousand dollars.

The judgment will be reversed, and the' cause remanded.

All concur.