71 Mo. App. 354 | Mo. Ct. App. | 1897
This is an action for personal injuries, received by the plaintiff February 7, 1895, from a fall on ice which had accumulated on the street crossing at Twenty-second street and Woodland avenue, Kansas City. There was a water hydrant at the northwest corner of these streets — placed there at what is called the “dead end” of a water main. At that date the National Waterworks Company owned the water system at Kansas City; and it seems that during the very cold weather of that winter the water company had at intervals opened this hydrant and let the water flow onto the street. This was done to purify the water and keep the hydrant open and free from ice. By this repeated escape of water, and which had spread.over the street, a coating of ice had formed so as to cover a large part of the area at the street intersection as well as the crossings for pedestrians on both the west and south sides. Just after dark of the evening in question plaintiff was traveling along the south side of Twenty-second street, going to his home about half a block distant. When he came upon the
I. Much of the city counselor’s brief is taken up with the contention that the trial court should have given a peremptory instruction to find for the defendant city, because, it is said, the opening of the fire hydrant to keep it from freezing, etc., was an act done in the performance of a public governmental duty, and for which the city is not liable in damages.
The mere fact that plaintiff had prior knowledge of the existence of the ice at the crossing was not of itself sufficient to bar a recovery. The use of a street, sidewalk or crossing known to be defective or obstructed, can not be declared negligence as matter of law. It is only where the defect or obstruction is so obviously unsafe that a prudent person in the exercise of ordinary care would not venture thereon. The knowledge of the pedestrian together with the ways open for avoiding the obstruction, and the like, are matters bearing on the issue of contributory negligence which ordinarily should be submitted to the jury. Gerdis v. Iron and Foundry Co., 124 Mo. 347; Taylor v. Springfield,. 61 Mo. App. 263.
While plaintiff knew of the ice formation over the crossing, the evidence yet tends to show that he was not conscious of its rough and uneven shape which rendered it unsafe to walk upon. We think under the
II. It is further contended that the case was improperly dismissed as to the National Waterworks Company, or rather, that the court erroneously sustained its demurrer to the evidence. This contention is based on a provision of the Kansas City charter, reading as follows: “Whenever the city shall be liable to any action for damages by the reason of the unauthorized or wrongful acts, or of the negligence, carelessness or unskillfulness of any'person or corporation, and such person or corporation shall also be liable to an action on the same account by the party so injured, and such injured party sue the city for damages suffered by him, and the city shall, in writing filed in the cause within fifteen days after the first day of the next term of the court after the service of the writ in said cause, notify the plaintiff or his attorney of record that such person or corporation, giving the name and residence of such person or corporation, is jointly liable with the city in such case, then the plaintiff in such action shall join such party or corporation as a defendant in said action, and any such cause shall not be prosecuted against the city until such party or corporation is made a codefendant with the city, provided, that if the city shall fail to file in said cause the notice as above provided, then the provisions of this section shall not apply in such case.”
Unquestionably now if this judgment in favor of the defendant water company should be allowed to stand, it would be a bar in any future contest between the city and said company. To relieve such bar therefore we shall reverse the judgment in favor of the water company in so far as it affects the right of the city, but affirm the plaintiff’s judgment against the city. We have a precedent for this in Wiggin v. St. Louis, lately decided by the supreme court, and reported in 37 S. W. Rep. 528.