Gallagher v. City of Tipton, 152 Mo. App. 412

Gallagher v. City of Tipton

152 Mo. App. 412 | Mo. Ct. App. | 1911

JOHNSON, J.

This is an action to recover damages for personal injuries which plaintiff alleges she sustained through the negligence of defendant, a city of the fourth class, in failing to keep one of its streets in repair. We considered the case on a former appeal of defendant from a judgment recovered by plaintiff, and held that plaintiff’s evidence presented issues of fact for the jury to determine, but we reversed the judgment and remanded the cause on account of error in the instructions. (133 Mo. App. 557). A subsequent trial resulted again in a judgment for plaintiff and defendant again has appealed.

The evidence adduced at the second trial does not differ materially from that we considered on the former appeal and we refer to the opinion then delivered for a statement of the case. We thought then and still think that if this were a case where plaintiff stepped off a gutter crossing constructed and maintained on a *415general plan of street improvement adopted and pursued by tbe city, there could be no recovery, but it appears from the evidence of plaintiff that this was not an ordinary crossing over an ordinary gutter, but that the city had negligently constructed the crossing over a deep hole or washed out place without filling the hole to reduce the gutter at the place to proper depth and width, or without placing guard rails at the crossing or without maintaining a street light there to show pedestrians the way on .a dark night. Obviously a narrow and unguarded bridge over a deep hole is a dangerous place at night and we do not think the city’s general plan of construction sanctioned, or legally could authorize, the maintenance of that kind of trap to the unwary traveler. The negligence disclosed by the evidence of plaintiff was in the construction of the crossing.

We find the issues were fairly tried and submitted in accordance with the law of the case as pronounced in our former opinion and it follows the judgment must be affirmed.

It is so ordered.

All concur.