Spencer v. City of Kansas City

The opinion of the court was delivered by Mason, J.: Mary Alice Spencer was injured by a fall caused by slipping upon ice on the sidewalk. She sued the city and recovered a judgment, from which it appeals. The defendant maintains that upon the record the city was not negligent, and the plaintiff was. There was evidence tending to show these facts: Mrs. Spencer left her home to go to that of a neighbor. She walked to a corner, turned at right angles and followed another side of the same block. She proceeded carefully, walking for about twenty-five feet on the terrace beside the walk. This brought her to a tree, to avoid which she stepped to the sidewalk, her injury following almost immediately. For some months water had been suffered to collect and remain at the street corner. The sidewalk was below the level of the surface of the [162] ground, but. not below the established grade. There was a slight depression in the ice, where the plaintiff fell. The jury found that the city had not done all that could reasonably and prudently be done to drain the water from the vicinity of the sidewalk. We think the evidence justified a finding that the proximate cause of the plaintiff’s injury was the negligence of the city in failing to provide such drainage as would prevent the water standing in the street so as to overflow the sidewalk. It is argued that the plaintiff is precluded from recovery by her own negligence, inasmuch as the condition of the sidewalk was apparent, and she could have avoided the place at which her injury occurred by crossing the street instead of turning the comer, or by going the other way and making use of an alley. The fact that the condition of the walk was apparent did not charge her with negligence in using it, provided she did so with care proportional to the situation, and this was a question for the jury. (Garnett v. Smith, 72 Kan. 664, 88 Pac. 615.) Testimony was given in behalf of the defendant to the effect that planks had been placed across the street at the comer, by means of which the plaintiff might have reached a brick sidewalk leading to the house to which she was going. The precise condition of the crossing, however, was not conclusively established. There was evidence that the street was covered with ice, and that a number of boys were skating there. It can not be said as a matter of law that ordinary prudence required the plaintiff to choose one route rather than the other. (Telephone Co. v. Vandervort, 71 Kan. 101, 79 Pac. 1068; Note, 17 L. R. A., n. s., 201; 28 Cyc. 1428.) Cases referred to in a note to the Kansas case just cited indicate that, the law in that respect has been interpreted .here more favorably to the pedestrian than in some jurisdictions.. (Note, 6 Ann. Cas. 32.) The judgment is affirmed.