Opinion
No. 42776.
July 14, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, T. James Conway, Asst. City Counselor, all of Kansas City, for appellant.
Charles F. tucker, Paul C. Sprinkle, William F. Knowles, Roy F. Carter, Sprinkle, Knowles Carter, Kansas City, for respondent.
Plaintiff McCormick was injured on April 24, 1949, while riding in the back seat of a car owned by him and driven by his son when the car passed through a dip or depression in the roadway of College Avenue at 50th Street in Kansas City, Missouri. He filed this suit against the City of Kansas City and a trial resulted in a verdict in plaintiff's favor in the sum of $10,000. From the judgment, the City appealed.
Plaintiff in his petition based his cause of action against the City on the theory that the City was negligent in failing to keep its streets, in particular College Avenue at 50th Street, in a reasonably safe condition and that due to such negligence he was injured.
The evidence disclosed the following: Plaintiff was riding in the back seat of his car. His son was driving and plaintiff's wife was riding in the front seat with the son. They were traveling south on College Avenue. There was a slight downgrade (from north to south) on College toward 50th Street for a distance of about 250 feet. At the north side of 50th Street where it intersected College Avenue there was a depression estimated by witnesses to be 4 to 8 inches at its deepest point. This depression extended across College Avenue from east to west and served as a drain for surface water. The width of the depression from north to south was about 15 feet. The evidence was that there was a gradual slope downward and upward through the depression. When plaintiff's car passed through this dip or depression, the car bounced and plaintiff was thrown upward and his head struck against the top of the car causing a fracture of a vertebra.
The defendant City contends on this appeal that plaintiff's evidence was insufficient to sustain a verdict in his favor. It is claimed that plaintiff's witnesses estimated the depth of the depression; that such evidence was of no value and was inaccurate because it was based on guess and speculation. Witnesses for plaintiff and for the defendant City estimated the depth of the depression to be from 4 to 8 inches. One witness for the defendant who was employed in the city engineer's office gave the accurate measurements of the depression to be as follows: the depth at deepest point, 6 inches; the width, 15 feet; and the length from the east to the west curb of College Avenue, 26 feet. There was a dispute in the evidence as to when repairs had been made at the point in question. The City contended that the surface of the street in the depression was repaired before the plaintiff was injured. A number of plaintiff's witnesses testified that repairs were made after plaintiff was injured and that in making the repairs the depression was filled to some extent. There was also a dispute in the evidence as to the extent a car would bounce when going through the depression at various speeds. Plaintiff, his wife, and his son testified that at the time plaintiff was injured the car was being driven at about 12 to 15 miles per hour; that they did not see the depression or dip before they drove through it. On this point the evidence was in conflict. Some witnesses testified the depression could be seen in time to reduce the speed of a car; other witnesses testified to the contrary. The record does not disclose whether any warning signs were posted as to the existence of the dip.
As we view the present record, the evidence was sufficient to submit to a jury the question of whether the City was negligent in maintaining the depression in the street. 63 C.J.S., Municipal Corporations, § 943, page 457; Little v. Kansas City, 239 Mo.App. 1007, 197 S.W.2d 1005; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, loc. cit. 564 (3-5).
The defendant City also says that the instruction given by the court at plaintiff's request authorizing a verdict for plaintiff was erroneous because it failed to submit whether or not the City was negligent. This contention of the City must be sustained. The instruction (No. 1) reads as follows:
"The Court instructs the jury that the defendant City of Kansas City, Missouri was required to keep its streets in a reasonably safe condition for travel by automobiles so, therefore, if you find and believe from the evidence that prior to April 24th, 1949 the pavement at the intersection of 50th and College Avenue and at the north edge of the intersection was constructed of concrete but in such a manner as to have an abrupt dip in the same, if you so find, and if you further find and believe from the evidence that when vehicles crossed said dip that they would be caused by reason of the construction thereof to violently bounce, if you so find, and if you further find and believe from the evidence that by reason thereof that said street was not reasonably safe for travel, if you so find, and if you further find and believe from the evidence that the plaintiff was riding in an automobile traveling south which traveled over said dip and that when said automobile did travel over said dip while traveling at a speed of approximately 15 miles per hour that the car caused to violently bounce and the plaintiff was thrown against hard surfaces therein and thereby injured, if you so find, and if you further find and believe from the evidence that the direct cause of the plaintiff's being so thrown was the condition of said dip as aforesaid, if you so find, then you are instructed that your verdict shall be in favor of the plaintiff and against the defendant."
The instruction placed on the City the absolute duty "to keep its streets in a reasonably safe condition for travel by automobiles." Such is not the rule. See 63 C.J.S., Municipal Corporations, §§ 802, 803, pages 114,120. In Taylor v. Kansas City, supra, 112 S.W.2d loc. cit. 564, this court said: "The full measure of the duty of a municipality in reference to the maintenance of public streets and sidewalks is that it exercise reasonable and ordinary care to keep them in a reasonably safe condition for travel thereon by those who use them in the exercise of ordinary care. Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180, 1182; Young v. City of Webb City, 150 Mo. 333, 51 S.W. 709; Gray v. City of Hannibal, Mo.Sup., 29 S.W.2d 710. It follows that a municipality is not required to keep its streets and sidewalks in such an absolutely safe and perfect condition as to preclude the possibility of accidents and insure the safety of travelers thereon under all circumstances, and is not liable `for every defect or obstruction, however slight or trivial, or little likely to cause injury, or for every mere inequality or irregularity' therein. 43 C.J.p. 1010, 13 R.C.L. par. 289; Thompson on Negligence, White's Supp., vol. 8, par. 6202; Lundahl v. Kansas City, Mo. App., 209 S.W. 564; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487, 491; Ray v. City of Poplar Bluff, Mo.App., 102 S.W.2d 814."
The same rule is found in Dowell v. City of Hannibal, 357 Mo. 525, 210 S.W.2d 4, cited by respondent.
Instruction No. 1 in this case may well have caused the jury to find against the City. The evidence of plaintiff was that the car in question was a 1939 La Salle sedan weighing between 4000 and 4400 pounds; that the springs and shock absorbers were in good condition. We are not the triers of the facts but it seems doubtful that such a car going at only 15 miles per hour would bounce to the extent claimed by plaintiff when going through a dip as described in the evidence.
The defect in instruction No. 1 was not cured by an instruction, given at defendant's request, which correctly set forth the duty of the City with reference to keeping its streets in a reasonably safe condition. Instruction No. 1, given at plaintiff's request, directed a verdict for plaintiff upon the theory that it was the absolute duty of the City to keep its streets in a reasonably safe condition. The error was harmful. It was especially so since plaintiff's evidence as to the unsafe condition of the street was, we may say, weak.
Other points briefed need not be considered since they will not likely be present on a retrial of the case.
The judgment is reversed and the cause remanded.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.