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08/23/83 LINDA MARIE CROFTON AND RICHARD CROFTON v.

August 23, 1983

LINDA MARIE CROFTON AND RICHARD CROFTON, RESPONDENTS,
v.
CITY OF KANSAS CITY, MISSOURI, APPELLANTS.



From the Circuit Court of Jackson County; Civil Appeal; Judge William F. Mauer.

Motion for Rehearing Overruled, Transfer Denied November 15, 1983.

Before Somerville, P.j., Turnage, C.j., Manford, J.

The opinion of the court was delivered by: Manford

This is an action to recover damages for personal injuries against a municipality, because of defects in a highway located within the corporate limits of the municipality. Trial by jury resulted in a verdict to respondents'-plaintiffs' favor in the sum of $42,750.00. The trial court entered judgment in accordance with the verdict. The judgment is reversed.

Appellant-city (defendant at trial) presents one point on this appeal, charging that the trial court erred in refusing to enter judgment in the city's favor at the close of the evidence, because the city owed no duty of care to respondents (plaintiffs at trial) with regard to U.S. 50 Highway in that the evidence established that at the time of the accident U.S. 50 Highway was a highway built, owned, and maintained by the Missouri State Highway Commission, *fn1 and as a result, the non-delegable duty of the city to maintain its roads does not extend to a state highway.

The record reveals that on February 23, 1973, respondent Linda Crofton was operating her automobile eastbound in the curb lane of U.S. 50 Highway. As she proceeded on U.S. 50 Highway to a point just west of the Blue River Bridge, she came upon some "chuckholes" in her lane of travel. These chuckholes had been in existence for a long time, and at the time, were in an icy condition. This portion of U.S. 50 Highway is within the corporate limits of the appellant-city.

Linda Crofton attempted to avoid the chuckholes, and in the process, she lost control of her automobile. Her automobile crossed the center line of U.S. 50 Highway and struck another automobile operated by one Judy Donovan. A third automobile operated by one Elizabeth Riederer was also involved in the collision.

Linda Crofton received personal injuries as a result of the accident. She sought damages for her injuries and was joined in this suit by her husband who sought recovery for loss of consortium.

The evidence showed that at the time of this accident, there was no maintenance agreement as to U.S. 50 Highway between the appellant-city and the State Highway and Transportation Department. By way of admissions from respondents-plaintiffs, the following was also made a part of the record:

"Number 1. That Missouri State Highway 50 between Lawn and Lister, as described in plaintiffs' First Amended Petition, was designated as U.S. Highway 50 at the time of the occurrence mentioned in plaintiffs' Petition.

2. That Missouri State Highway 50 between Lawn and Lister, as described in plaintiffs' First Amended Petition, was part of the Missouri State Highway System at the time of the occurrence mentioned in plaintiffs' Petition.

3. That in February of 1973 the Missouri State Highway Department was exercising maintenance functions upon Missouri State Highway 50 between Lawn and Lister, as described in plaintiffs' First Amended Petition.

4. That U.S. Highway 50, including that portion between Lawn and Lister as described in plaintiffs' First Amended Petition, was established under the authority of the Centennial Road Act as passed by the Missouri General Assembly in 1921.

5. That Missouri State Highway 50 between Lawn and Lister, as described in plaintiffs' First Amended Petition, was established and paved as a State Highway in 1927.

6. That the defects in Missouri State Highway 50 between Lawn and Lister, as described in plaintiffs' First Amended Petition, were repaired by the Missouri State Highway Department or agents acting on behalf of the Missouri State Highway Department."

At the close of respondents' evidence, appellant-city moved for a directed verdict. This motion was denied. At the close of all the evidence, appellant-city again moved for a directed verdict. This second motion was denied. The jury returned its verdict, awarding the sum of $41,250.00 to Linda Crofton, and the sum of $1,500.00 to her husband for a total judgment of $42,750.00 against the city. Appellant-city moved for judgment N.O.V., and this motion was deemed denied after the lapse of ninety days because the trial court did not rule the motion. This appeal followed.

The parties hereto agree upon the facts involved, with the noted exception that appellant-city concludes from the above admissions that the particular location of U.S. 50 Highway was built and owned by the Missouri Highway and Transportation Department. Respondents do not agree that the foregoing admissions establish the construction and ownership in the Highway and Transportation Department. There is no other direct evidence on this point. This particular dispute is of no importance anyway because Disposition of this matter rests upon other evidence upon the record and the applicable law related to the issue on appeal.

The parties quite obviously differ regarding the issue whether appellant-city owed a duty to maintain U.S. 50 Highway in a safe condition. Appellant-city disclaims any duty, asserting that U.S. 50 Highway is a state public highway. In contrast, respondents contend the city owes such a duty (and this duty is nondelegable) because said highway is within the corporate limits of the city and by virtue of the city charter. In a simplified way, this is the dispute presented on this appeal.

Appellant-city first acknowledges the undisputed evidence which reveals that the particular portion of U.S. 50 Highway is within its corporate limits. The city points out that the evidence reveals no maintenance agreement between the city and the Highway and Transportation Department. It is further noted from the above admission that U.S. 50 Highway was established under the 1921 Centennial Road Act. These same admissions acknowledge that at the time of this accident, the Missouri Highway and Transportation Department was exercising maintenance functions upon the particular portion of U.S. 50 Highway.

It is noted that the defects in U.S. 50 Highway were repaired by the Missouri Highway and Transportation Department.

Appellant-city contends that it owed no duty to respondents to maintain U.S. 50 Highway in a safe condition simply because this highway was within its corporate limits. Appellant-city furthers its argument by pointing out that Mo. Const. Art. IV, ยง 29 established the highway department and its authority over state highways. ...


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