Livingston v. City of St. Joseph

174 Mo. App. 636 | Mo. Ct. App. | 1913

ELLISON, P, J.

Plaintiff received personal injury by falling on one of tbe sidewalks in St. Joseph in front of property owned by that city’s codefendants, James and wife. She obtained judgment against all the defendants and they appeal.

The evidence tended to show that plaintiff fell oh the’sidewalk on Faraón street between Twelfth and Thirteenth at about noon, on the 3rd of January, 1912, and that her fall was caused by ice formed from a combination of water and snow, the water coming from a hydrant on the premises occupied, by James and wife. Pour or five days preceding her fall, a three inch snow had fallen and on the morning of the day she fell one inch more was added. The water'escaping; from the hydrant ran off the adjoining premises onto the sidewalk, making a slush at that place and the weather being cold it froze unevenly; some spots being from two to four inches higher than others. The evidence. tended to show it was one of those abruptly higher places that caused plaintiff to slip and fall.

Defendant city likens the case to those where the fall of snow being general over the city and freezing and thawing going on, together with the passing of pedestrians, caused footprints to be made in the slush, which, when frozen, would make a rough and uneven surface. But those are cases where the condition, caused by the elements, existed over all, or large parts, of the city, a condition which the city is powerless to prevent' and necessarily slow to remedy. The case made by plaintiff is not of that kind. Her case is not where melting snow flowed and froze on the walk from terraces or sloping ground. Nor did she fall in eon-sequence of a dangerous condition arising from the elements and which extended over large areas. It is true that falling snow and freezing weather appear as facts in the case, but the controlling feature condemning the city is, that there was an additional cause — a special cause — confined ■ to a small and definite place, which was in the power of the city to remove. That was the flowing hydrant. That fact had a controlling influence in bringing about plaintiff’s misfortune. The distinction to be made in thesé cases is fully considered by the Supreme Court in Reedy v. Brewing Association and City of St. Louis, 161 Mo. 523, approved in Vonkey v. St. Louis, 219 Mo. 38, and we need say no more than to refer to those decisions.

• While there was evidence tending to show that plaintiff knew of the conditions of the walk at the place she fell, yet the question of due care on her part, in these circumstances, was properly submitted to the jury. It is not a case which wouid have justified the court in declaring plaintiff guilty of want of care, as a matter of law.

Complaint is made of the instruction for plaintiff using the term unsafe and dangerous in describing the sidewalk instead of its being “reasonably safe.” Whatever inaccuracy or error there is in this was cured by defendant city adopting it in instructions in its behalf.

There was evidence sufficient to submit to the jury the question of the city’s knowledge of the dangerous place. The hydrant was shown to have been running water across the walk for a considerable period of time. The season was winter and the city authorities must have known the danger of allowing water, which could have been stopped with slight effort, to flow across a walk, especially after a snow had fallen and laid upon the walk for four or five days.

We are however of the opinion that there was no evidence to support the allegation of the petition as to tiie defendants, James and wife. The hydrant was one which was opened by turning a valve with a small metal wheel and to open it took the active agency of a person. The evidence wholly failed to sustain the charge and their demurrer to the evidence as against them should have been sustained. The judgment will therefore be affirmed as to the defendant city but reversed as to them.

All concur.