169 Mo. 500 | Mo. | 1902
— Appeal from a judgment for plaintiff for $600 damages for personal injuries sustained in falling on a sidewalk, alleged to have been out of repair and negligently suffered by defendant to remain so. Besides a general denial in the answer, there was a plea of contributory negligence.
The testimony for plaintiff tended to show that the sidewalk on which she fell was in a public street in a thickly-inhabited part of the city; that it was constructed of brick, and that for several weeks prior to and at the time of the accident there was a hole in the pavement caused by the removal of some of the brick, and there were some loose bricks and some-displaced lying on the sidewalk; that about half past eight or nine o’clock in the evening of November 11, 1899, the plaintiff was walking along the sidewalk where it was dark and she could not see, but observing ordinary care she stumbled over the loose bricks, fell and received serious personal injuries; that she was in the habit of- passing over this sidewalk and knew that it was in bad condition.
On cross-examination she testified:
“Q. How came you to stumble there if you knew it so
“Q. You had at least eight feet clear? 'A. . No, sir:
“Q. You got on it before you knew it ? A. Of course I struck that part of it.”
On the part of defendant the evidence tended to show that the inspector of sidewalks observed that this sidewalk was out of repair in September, 1898, and gave orders to the city contractor to repair it. On November 2, 1899 (a few days before the accident), the inspector again inspected the sidewalk and then observed that there were some loose bricks near the building line extending not more than eighteen inches over the sidewalk, but did not report it as dangerous until after the accident, -since which it has been filled with cinders. The evidence for defendant, consisting chiefly of testimony of police officers on that beat, tended further to show that whilst the sidewalk had for sometime been a little out of repair, yet it was not by any means as much so as tire plaintiff’s evidence tended to show.
The case was given to the jury under instructions for both plaintiff and defendant, which covered every point and which are unchallenged except in the particulars presently noted. The only instruction given that is complained of is as follows:
“The jury are instructed, if they believe from the evidence that a defect existed in the sidewalk in question on the 11th day of November, 1899, that as to what length of time would be required to justify the inference of the knowl-edge of such defect by the city of St. Louis there is no -fixed or definite rule, and each case must depend upon the facts and circumstances attending it. Thus, if the jury believe from the evidence that Rutger street at the point in question was a street much traveled and in use, the duty of the city in looking after its condition required greater diligence. in seeing that it was reasonably safe for travel than if
The criticism of this instruction is in the use of the words “for only a few hours,” indicating that the city under some circumstances might be charged with notice of a defect that existed only a few hours or a fraction of one day. We think that instruction presents the law correctly. A defect might occur when and where the city would be required to be on the watch, and if so would be chargeable with notice of what it would have known if it had been doing its duty. But if the instruction had not been correct it was on a point which could not possibly have prejudiced the city’s defense. ‘ The defendant’s testimony showed more clearly than that of the plaintiff that the city had actual notice that this sidewalk was out of repair at least nine days before the accident. The only point in reference to the defect on which the testimony of plaintiff and that of defendant materially differed was the degree to which the sidewalk was out of repair. ■ That it was out of repair and that the city officers had known it for several weeks, appears from their own evidence.»
Defendant asked an instruction in the nature of a dee murrer to the evidence which was refused, and it is now insisted in the brief for appellant that this should have been given Because there was no evidence that the defect had
Defendant also complains of the refusal of this instruction: “If the jury believe and find from the evidence that the injuries sustained by plaintiff were caused by accident, mischance or misadventure, and without the negligence of either said plaintiff or defendant, then the plaintiff is not entitled to recover and the verdict must be for defendant.”
An instruction of that kind is sometimes applicable to a case in which the cause of the accident is involved in so much doubt that it can not be ascertained with reasonable certainty that it is' attributable to the negligence of either party, but it has no application to the facts of this case. This accident was caused either by the defect in the sidewalk alone, or by that and the negligence of the plaintiff contributing, and on those points the jury had ample instructions.
The knowledge of a pedestrian that a defect exists in the sidewalk does not necessarily convert his use of it into negligence on his part. If the defect appears to be such that it may be used without danger by a person exercising that degree of care that a reasonably prudent man under those conditions would ordinarily use, it is not negligence to so use it. Such knowledge is a fact bearing on the issue but is not conclusive. [Smith v. St. Joseph, 45 Mo. 449; Graney v. St. Louis, 141 Mo. 180; Chilton v. St. Joseph, 143 Mo. 192; Womach v. St Joseph, 168 Mo. 236.]
We discover no error in the record and the judgment is affirmed.