Brady v. City of St. Joseph , 1912 Mo. App. LEXIS 658 ( 1912 )

ELLISON, J.

Plaintiffs ’ action is to recover damages resulting to them from the death of their son, occasioned, as they allege, by the negligence of the city. The judgment in the trial court was for plaintiffs.

It appears from the evidence that for a number of years, near where plaintiffs resided in the limits of the defendant city, a deep ditch or ravine with steep banks ran a short part of its course in one of defendant’s streets. A roadway likewise ran in the street, at one place in a few feet of, and others twenty or more feet away from the ravine. There is considerable evidence as to just how the ravine ran and where the deceased was found, where his hat was discovered, etc. But for our purposes it may be conceded that deceased went over the embankment at a place within the limits of the street and was thereby killed. No one saw him as he went over. The last seen of him was just before reaching the place, when he was proceeding on his way to perform some service for his mother. He was found dead at the bottom of the ravine with his head and perhaps his shoulders under water.

Deceased was nineteen years old and had known this street and ravine since early childhood. The time of the accident was in the afternoon, in June, in full (daylight. There were no obstructions to the foot or the eye. There was nothing to suggest that he stumbled- over something in the road and was thereby thrown-into the ditch. Nor was there, anything occurred whereby he may have run into it in an effort to escape some other danger. Necessarily he must have walked into it while wholly oblivious to his surroundings, or of what he was doing-; or else he was attempting, for .some reason, to get down the bank, and lost his balance. But whatever caused him to get into the place where found, it must have resulted from his contributory negligence. [Woodson v. Street Railway, 224 Mo. 685; Wheat v. St. Louis, 179 Mo. 572; Kaiser v. St. Louis, 185 Mo. 366.]

There is no need to urge cases upon our attention where there were things which concealed the danger, or might shut it out of sight. Such cases have no bearing upon the conditions here presented.

In the stress of this situation plaintiffs call upon the. ordinary presumption that he was in the exercise of ordinary care for his own safety. But that presumption does not arise. It is crowded out of the case by the fact that he saw .the danger, or blindly refused to see. ‘ ‘ There can be no presumption of ordinary care in the face of such facts to the contrary and without explanation.” [Huggart v. Railroad, 134 Mo. 673, 679, 680; Hayden v. Railroad, 124 Mo. 566, 573.]

The suggestion is made that the deceased had incipient epilepsy. But we need not deal with such solution - of the mystery of his action, for it was not pleaded (Woodson v. Street Railroad, supra) and, in addition, was abandoned by not having been mentioned in instructions offered by plaintiffs.

• -.Plaintiffs’ case being without legal support, the. judgment must be reversed.

All concur.