— This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $4000 and defendants have appealed.
The facts show that plaintiff, a woman twenty-three years of age, was injured on November 15, 1S'24, while walking on the west side of Main street in Kansas City, between 10th and 11th'streets. She was on a public sidewalk in front of 1026 Main street, the place of business of defendants, the Luces, a co-partnership. These defendants are hereinafter called the personal defendants.. Plaintiff in infancy suffered an amputation of her right leg and was required to use a crutch with which she could walk as well as any person under such ■a handicap. She was injured by inserting her crutch in a hole in the sidewalk. This resulted in the crutch going in a downward direction into the hole for several inches and the stump of her leg to come in contact with the sidewalk, causing her serious injuries.
The facts further show that the building was occupied by the personal defendants as sub-tenants; that the basement of this building-extended out under the paved sidewalk in question and that these defendants in the transaction of their business occupied and used that ■part of the basement under the sidewalk as well as the basement under the building; that the space under the sidewalk was used by *285 them for the storage of its records and for the.keeping of gas and water meters therein. There was a manhole about two feet in diameter in the sidewalk above the part of the basement extending under the sidewalk. This manhole was covered with a metal top in which were many circular holes tilled with glass from one and seven-eighths to two and one-fourth inches in diameter. The glass was for the purpose of furnishing light in the basement under the sidewalk. At the time plaintiff fell, there were two or three of these glasses missing. The pieces of glass rested upon ,a one-fourth inch circular shoulder below the surface of the covering, which caused tiie openings at the shoulder to be somewhat smaller in diameter and, when the glass was removed, holes to be, left through the manhole covering fmn one and three-eighths to one and three-fourths inches in diameter. However, there was evidence to the effect that the holes left through the covering after the removal nf the glass were large enough for a woman’s shoe heel to become caught therein. Plaintiff was injured while walking-over the sidewalk in question when she. placed her crutch in one of these lióles in the manhole covering where a glass had formerly been. The evidence shows that- these pieces of glass had been absent from the manhole for at least two months before the injury. The place where plaintiff fell was a much traveled part of the city and at the time in question many people were passing- to and from a picture show located next door to 1026 Main street-.
Plaintiff insists that the judgment should be, affirmed on the record proper because that part of the record docs not identify the hill of exceptions brought here by defendants as the bill filed in- the trial court. The record proper recites—
“. . . And afterwards on the 30th day of the November term, 1926, same being Thursday, December 30, 1926, same being before the last day of November, 1926, term of this court; defendants presented to the court their bill of exceptions, and the court having examined the same and found it to he correct, the same was by court signed, sealed and allowed, and it was ordered by the court that said hill of exceptions be, and the same was filed and made a part of the record herein in this case.
“And upon the 301 h day of November term, 1926, same being Thursday, December 30, 1926, said bill of exceptions was duly filed with the clerk of said court who endorsed his filing mark thereon, entered on the records of said court by order of the court and the same was duly filed on said day.”
Following the above recitals is a stipulation to the effect that the appeals taken by defendants be consolidated. Following this stipulation appears the bill of exceptions under the title “Bill of Exceptions.” The case is styled in the bill of exceptions the same as in the abstract of the record proper. Respondent relies upon the case of
*286
Watson v. Kerr,
“To sum up, the situation is this: The bill of exceptions incorporated in the abstract of the record purports on its face to be the bill of exceptions in a different case. . . .We know of no way by which a bill of exceptions filed and approved in one case can be treated as a bill of exceptions in a different case. ... No proper bill of exceptions is shown to have been brought before us, hence there is nothing for review, except the record proper.”
We think that the holding in the Watson case is not applicable to the facts in the case at bar. The record proper in the present case sufficiently identifies the bill of exceptions as the bill filed in the trial court. [State ex rel. v. Trimble,
It is insisted by the defendant, Kansas City, that the petition does not state facts sufficient to constitute a cause of action because it does not allege a compliance with the statute providing for service of a notice upon the mayor within ninety days after the injury for which plaintiff claims damages, stating the place and time when such injury was received, the character and circumstances of the injury, and that plaintiff would claim damages therefor from the city. The statute does not create the cause of action but the action existed independently of the statute. The notice not being an element of the plaintiff’s cause of action, it ivas not necessary to plead it in the petition. [Morrill v. Kansas City,
However, it is insisted by the defendant city that the court erred in admitting in evidence the notice to the city purporting to contain the signature of the mayor acknowledging service of the same on F'ebruarv 12, 1925, because there is no proof that the purported signature was in fact that of the mayor or that notice ivas in fact served within, the ninety days’ period. No objection was made to the introduction of the notice on the ground now raised by said defendant and it cannot be urged here in this court. [Johnson v. K. C. Rys. Co.,
Defendants claim that their 'demurrers to the evidence should have been sustained because the sidewalk in question was reasonably safe
*287
for persons traveling thereon. We think this was a question for the jury. [Upham v. City of Boston,
■ The personal defendants contend that the petition does not state any cause of action against them in that it fails to allege “that they were guilty of any commissive acts or commissive negligence.” The' petition alleges that these defendants maintained the manhole or “coal hole” with a covering therein in the sidewalk and that they, for a long time prior to plaintiff’s injury, negligently suffered and permitted said covering to be and remain in a defective and dangerous condition leaving holes from two to three and one-half inches therein. The only attack made upon the petition at the trial was an objection to the introduction of any evidence thereunder. This manner of attack is not looked upon with favor, and if the petition states any cause of action whatever, it makes no difference how defectively-it is stated, it must be held to be good. [Lopez v. Hines,
However, the personal defendants claim that there was no evidence showing that they were guilty of any commissive acts of negligence and therefore plaintiff is not entitled to recover as to them. There is no evidence as to who placed the manhole in the sidewalk but it may be inferred that it was placed there either by the owner of the property located at 1026 Main street or by some other person for a purpose in connection with the use of the premises. The testimony shows that it was in existence at the time the personal defendants sublet the premises. The manhole was used, by these defendants to afford light for that part of the basement under the sidewalk. There is no evidence that it was used by them for any other purpose. The evidence shows that shortly after plaintiff was injured the personal defendants removed the manhole and replaced it with concrete so as to make the sidewalk of continuous material of this character. Defendants as tenants were required, under the common law, to keep the premises in repair but as showing'the control that the personal defendants had of the place in question, plaintiff introduced the lease under which these defendants held the property. This lease under the heading of “REPAIRS AND MAINTENANCE” provides that the lessees shall
*288
keep in good condition and repair “all exterior and interior parts of such improvements,
pavements,
alleys,
sidewalks,
entrances and approaches thereto” (italics ours). In view of the fact that these- defendants were in possession and control of the areaway under the sidewalk and used that part of the premises for their purposes in connection with which the manhole was used in furnishing light, we think there is no question but that- there was sufficient evidence to go to the jury on the question of their negligence in failing to keep the manhole cover in proper repair. [Kilroy v. St. Louis,
“The petition in this case alleges that defendant, as tenant and lessee, occupied the building at the southwest corner of St. Charles and Seventh streets in St. Louis, Mo., and that it was guilty of negligence in permitting a small hole to remain in the sidewalk in front of said property, by reason of which plaintiff’s cane, which it ivas necessary for her to use in walking, went into said hole where glass had been broken out, caused her to fall and sustain the injuries complained of in petition. It is not claimed that defendant, or any of its employees, produced said hole, or in any manner aided in producing the same. On the contrary, plaintiff, in her petition, seeks to recover damages from respondent on the theory that it impliedly was under obligation to keep said walk in repair.” :
The court then treated the case as though it were one merely where a. defective sidewalk in front of the abutting- property occupied by defendants as tenants was involved, for, in support of the' decision the court relied upon a case holding that even where the city has passed an ordinance requiring the property owner to keep a sidewalk in repair, or remove ice and snow therefrom, in front of premises of an abutting owner, such owner is not responsible for injuries caused by failure to comply with the ordinance, for the reason that there is no such duty at common law and such a duty cannot be imposed upo a the abutting- property owner by ordinance. The petition in the case at bar relies upon something more than'the mere liability of an abutting property owner or tenant to keep in repair the sidewalk' in front of his premises. For, as before stated, ■ it pleads affirmatively that these defendants maintained the manhole and covering therein ás lessees of the building. Tt may be that ordinarily a property owner or tenant owes no duty to the public to repair or keep in safe condition a manhole in a sidewalk abutting his property, and this is all that is held in the case of Breen v. Johnson Bros. Drug Co., supra,
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Wright v. Hines,
“This doctrine is entirely distinguishable from the cases cited by appellant, to the effect that if a private individual throws watet on a sidewalk and thereby causes ice to accumulate, or construct a coal chuté in the walk, or places a stairway thereon, or puts an obstruction of any kind on the walk for his own purposes, he may be personally liable for an injury resulting therefrom. Those persons are held liable because they are placing something on or in the walk that does not belong there, or is placed there for his own use, and is not a part of the walk as originally 'constructed. The principle on which they are held responsible has no application to a private individual who may fail in his duty to the city to repair a sidewalk abutting his property.” [See, also, Independence v. Mo. Pac. Ry. Co.,
Defendants insist that the court erred in giving plaintiff’s instruct tions Nos.'l and 2 and defendant) Kansas City, that it erred in re-, fusing to give its instructions J and K. Plaintiff’s instruction No. 1 reads as follows: ■ ■ •
“The court instructs the jury that it was the duty of'the defendant Kansas City to exercise ordinary care to maintain the sidewalk in question in a reasonably safe condition for persons traveling thereon while exercising ordinary care for their own safety, and if you further find and believe from the evidence that there were holes in said sidewalk of sufficient dimensions so' as to make said sidewalk dangerous to persons using a. crutch’ in traveling over the same, and that the defendant Kansas City by the use of ordinary care on its part should have anticipated that such persons would be traveling over said sidewalk and that there would be danger to such persons from the existence of said holes, and if you further find and believe from the. evidence that said holes were in said sidewalk for a length' of time reasonably sufficient to have enabled the defendant Kansas City by the exercise of ordinary care, to have known of and remedied and repaired the same, and that said defendant Kansas City negligently failed so to do, and that as a direct result of the s'aid negligent fáilure of the defendant the holes in said sidewalk caused the said sidewalk to-be in a condition which was not reasonably safe for the plaintiff to use while exercising such care for her own safety as would be ordinarily exercised by a reasonably prudent person under the same or similar circumstances, and that the said plaintiff on the 15th day of November, 1924, while walking' north on said sidewalk was injured by reason of her crutch going through one of said holes, if it did, in the said, sidewalk, and that at said time and place the plaintiff was exercising reasonable care for her own safety and that.as a'direct resvdt, of said defendant’s negligence, if any, as aforesaid, the plaintiff’s crutch went through one of said holes, and the plaintiff was *290 thereby caused to fall and be injured, if you find she was injured, then your verdict must be for the plaintiff and against the defendant Nansas City. ’ ’
Plaintiff’s instruction No. 2 is similar to her other instruction except that it covers her ease against the personal defendants. Instruction No. 2 submits the duty of said defendants in occupying property abutting on the sidewalk in question and maintaining an areaway and manhole covering in the sidewalk for use in connection with the occupation of the premises and submits that under such circumstances defendants were under the obligation to exercise ordinary care to maintain the covering in question in a reasonably safe condition for persons traveling thereon while exercising ordinary care for their own safety. The remainder of the instruction is similar to that part of plaintiff’s instruction No. 1 relating to the care required of defendants toward persons using a crutch in traveling over a sidewalk, including plaintiff.
The city’s refused instructions J and N sought to submit that the city’s duty was to keep its streets reasonably safe for the
ordinary a-rkl u-sual mode
of travel and that it was not liable for failure to make special provisions required only for the safety of persons traveling with crutches. Under the holding of Bethel v. St. Joseph,
*291 No doubt the Supreme Court in the Hunt and Hanke eases could have distinguished those eases from the Bethel and other cases decided by this court, in the way that defendants contend they did distinguish them, but as a matter of fact the Supreme Court did not do so but put its holding upon an entirely different ground. In the case of Hunt v. St. Louis, plaintiff was injured while riding in a wagon at nighttime when he ran against rock and sand piled in the street by the subcontractor, Heman, one of the defendants. This caused the wagon to turn over, throwing plaintiff out, resulting in the horse becoming frightened and plaintiff being dragged some distance and badly injured. There was a verdict against the subcontractor who caused the obstruction to be in the street but in favor of the contractor and the city; both plaintiff and the subcontractor appealed. There Avas a dispute in the evidence as to AA'liether the horse at the time plaintiff aaus injured Avas beyond plaintiff’s control and running aA\ray. The trial court gave an instruction Avhicli, among- other things, told the jury that the city’s liability Avas to keep the street in a “reasonably safe condition for travelers passing over them in the ordinary mode.” The court in condemning this instruction did not put its disapproval upon the grounds suggested by the defendants in the case at bar, but stated, 1. c. 227, 228 — >
“It is the duty of the city to keep its streets in reasonably, safe condition for traA’elers passing 0A7er them in any and all modes: provided only (1) such modes are laAvful, and (2) clo not of themselves constitute contributory negligence in the traveler to a degree forbidding his reeoveiy. . . .
“.Tf the test of the use of the streets and sideAvalks of cities by pedestrians and persons riding thereon is to be that of the use thereof in the ‘ordinary mode’ serious question Avould inevitably arise as to Avhat constituted the ordinary mode. This question Avill comprehend the rate of travel as AArell as the means thereof.”
The Supreme Court in the Hunt and Hanke cases not only overruled the Bethel and Wilkerson cases decided by this court (see 43 C. J., pp. 1004, 1005, note 5.7) but disagreed Avith many of its oavii decisions, among Avliieh are Sindlinger v. City of Kansas,
However, it is contended that the .jury were instructed that the sidewalk should be kept reasonably safe for plaintiff to use, thus saying to them that the city was under the duty to make a special provision for her. We do not so read the instruction. As we read it, it required the jury to find, first, that defendants failed to use ordinary care to keep reasonably safe the sidewalk for persons traveling over the same by the use of a crutch, and then, in addition, that before plaintiff could recover the jury must find that the sidewalk was not reasonably safe for her; in other words, the two propositions were submitted in the conjunctive.
We think, however, that the court erred in giving plaintiff’s instruction No. 3, which reads as follows:
“The court instructs the jury that a pedestrian using the sidewalks is not required to constantly keep her eyes directed toward the sidewalk as she takes each and every step, but is only required to use such care as an ordinarily careful and prudent person would use under the same or similar circumstances and you are further instructed that if you find and. believe from the evidence that plaintiff had no knowledge of the holes, if any, in the manhole cover at the place mentioned in the evidence and had no reasonable ground to anticipate that there were such holes, if any, in said manhole cover, then she had a right to assume that the sidewalk at the place mentioned in evidence was reasonably safe for her to walk on same -with reasonable safety, and you are further instructed that if you find and believe from the evidence that plaintiff was at the time and place mentioned in the evidence, using such care as would ordinarily be exercised by an ordinarily careful and prudent person, under the same or similar *293 circumstances, lben plaintiff was not guilty ol’ negligence in not look ing at the sidewalk and in not seeing the hole until her crutch Avent therein, if you believe it did.”
The evidence as to what care, plaintiff used at the time in question was as follows: Her witness, McDonald, testified that she was injured about 5 :00 P. M. and at the time it was broad daylight; that persons were traveling* on both sides of the sidewalk, those northbound, as were the Avitness and plaintiff, were upon the east side of the walk and those southbound next to the property line; that plaintiff Avas traAuling from seven to eleven feet in front of him, that no one Avas between the íavo and that there Avas no one in front of plaintiff closer than three feet. The Avitness further stated that he was Avalking with his Avife, side by side, and. had dio difficulty; that plaintiff Avas looking straight ahead and Avalking at an ordinary gait, about the same rate of speed as the Avitness; that in his judgment there Avould not he any danger to anyone Avalking on the sideAvalk at the place in question except to one Avalking Avith a eane or cratch. Mrs. McDonald testified that plaintiff and the Avitness were Avalking on the outside of the east side of the sidewalk and that southbound pedestrians Avere Avalking on the inside or Avest side of the Avalk; that plaintiff! had some packages in her arms at the time she fell Avhich “fleAV on the sidewalk;” that there Avere a number of people coming out of the picture shoAv, that the street Avas ciwded; that she Avas from six to ten feet behind plaintiff AA'lien the latter fell; that there Avere many people on the streets hack and in front of her and' plaintiff but the witness could sec no one betAveen plaintiff and herself and Imsband.
Plaintiff testified that at the time she fell she was in good health; that “1 didn’t expect the hole to he there, I Avas Avalking* right along*;” that she had no knoAvledge of the presence of the hole aiid assumed that the street Avas ‘‘all right;” that- there was ‘‘quite a crowd ahead of me;” that the picture shoAv Avas about Hour yards from where she fell; that she watched the sideAvalk ‘‘Avhere 1 could ... I didn’t feel that I could keep Diiy eyes right doAVDi on the sideAvalk;” that she Avas not looking at the sideAvalk aa*1dcd'o she placed her crutch at the time she fell. She further testified—
‘‘Q. You Avere not noticing, Avere you? A. Yes, of course, 1 could Diot keep my eyes glued doAvn to the sideAvalk,
‘‘Q. I am not asking you if they Avere glued, I asked you if you wore looking. A. Yes, I tried to.
She testified that there Avas a crown of people around her and the closest person to her Avas “right next 1o me, . . . Well, there Avas some in front and some in the side and' some in the hack;” that the person hi front Avas aboAit one foot aAvay and that she Avas Avalking that close to the people there; that “I Avas watching — trying to watch my step and still trying to weave my .way through the croAvcl.”
*294 “Q. 'Were you watching where you placed your crutch? A. Whore 1 could I tried to, but there was a crowd I land of had to weave my way through the crowd.
“Q. Did you ever see where you placed your crutch at that time? A. No, sir.
“Q. You put it down without looking where you were putting it? A. Yes, sir.”
As the evidence is undisputed that plaintiff did not know of the hole in the sidewalk, plaintiff’s instruction No. 3 is tantamount to telling the jury that she was under no obligation to look at the sidewalk and see the hole in which she put her crutch, providing she exercised ordinary care in other particulars. The instruction is ambiguous; it is susceptible to a construction that the plaintiff was under no duty to look in any manner at the sidewalk ahead of her. It is true that the courts have held that pedestrians who have no knowledge of any defect in the street and: there is nothing in the surroundings to indicate any danger, are not required to constantly keep their eyes on the sidewalk in front of them; in other-words, as stated in some cases, they are not required to be “sidewalk inspectors” (see Huffman v. City of Hannibal,
“If the jury find and believe from the evidence that the sidewalk mentioned in the evidence was a public thoroughfare and in common and general use by pedestrians, and that plaintiff did not know that covering had been removed from the manhole or opening in said sidewalk, then the plaintiff had- the right to act upon the assumption that the said sidewalk was in a reasonably safe condition, plaintiff being required, however, in going or walking along or upon said sidewalk to exercise reasonable care for bis own safety.”
But it is well settled that when a. court sajrs that one does not have to keep liis eyes glued upon the sidewalk in front of him, or to constitute himself a “sidewalk inspector,” it is not meant that there is no duty whatever to look. [See Ryan v. Kansas City,
“. . . every traveler is bound to use ordinary care for his own safety and that if Mrs. Coffey in that case was proceeding carelessly and without paying any attention to where she teas walking then she could not recover, but it is not to be understood that it is the duty of the citizen to inspect the sidewalks or streets for defects of which he has no knowledge, but he, may act on the presumption the street *295 is reasonably safe so long as be conducts himself as a reasonably prudent person would under like circumstances.”
The rule under such circumstances "is well stated by the Supreme Court in Hebenheimer v. St. Louis,
“Respondent’s duty was to exercise ordinary care for her own safety. She was not, however, ‘bound to look for hidden dangers.’ All that was required of her was that she walk with her eyes open, observing her ‘general course and in the usual manner.’ ”
All of the cases that we have cited on this question involved persons who had no physical defect such as the loss of a leg requiring the use of a crutch. However, we would not be justified in saying that one traveling upon a crutch would be required under all circumstances to keep a constant look ahead for possible places where a crutch might get caught, and we think in the case at bar, under the facts taken in their most favorable light to plaintiff, we cannot say as a matter of law that plaintiff was guilty of contributory negligence in not looking where she placed her crutch at the time in question. It will be remembered that the street was crowded and according to her testimony there were people on every side of her and she had reason to believe that the sidewalk in a congested part of a large city like Kansas City, and presenting a long expanse of perfectly smooth, paved surface, would not contain holes such as the evidence shows existed at the place in question.
However, in passing upon the question as to the propriety of giving plaintiff’s instruction No. 3, which, aside from the first part thereof, which is a mere abstraction, is susceptible to the construction that it declares, all as a matter of law, that plaintiff was not guilty of negligence in not looking in any manner at the sidewalk and in not seeing the hole, we must take the evidence in its most favorable light to defendants. This evidence shows that while there were a great number of people on the sidewalk, the crowd was not as dense as plaintiff’s evidence tends to show. There was some evidence tending to show that there was as much as eleven feet between McDonald and plaintiff with no pedestrian intervening, and that there was no person in front of her for a distance of three feet. There is no contention that anything unusual occurred distracting plaintiff’s attention. Even if plaintiff Avas required to use no more care than that prescribed in the case of Hebenheimer v. St. Louis, supra, that is, to Avalle with her eyes open, observing her general course in the usual manner, we cannot say as a matter of Law, taking the testimony in its most favorable light to defendants, that plaintiff, under all the circumstances, has shoAvn that if she had exercised the degree of care prescribed, she would not have seen the bole. No court has gone to the extent of holding that even a person with srood leas is as a matter of law not *296 guilty of contributory negligence in failing to look u(, the sidewalk and not see the defect therein.
Even assuming that the instruction is to be read as excusing plaintiff, merely from looking down at the sidewalk in front of her to see that she did not place her crutch in a hole, we are still of the opinion that the court should not liarle declared as a matter of law that plain-tiff with her impediment, with packages under her arm and under, all the circumstances, was not guilty of contributory negligence as a matter of law in failing to so look. [43 C. J., pp. 1080, 1081.] We think that under the facts in this case plaintiff’s instruction No. 3 was clearly erroneous and requires and reversal and remanding of the ease in favor of both defendants.
The personal defendants contend that the court erred in permitting plaintiff’s counsel to interrogate the jury on
voir dire
examination in reference to their connection with the Employers Indemnity Corporation. There was no error in this connection if the facts in the record establish that such inquiry was made in good faith. [Malone v. Small,
There was no error in the admission of evidence of the repairing or reconstruction of the manhole in question by the personal defendants. This evidence was competent as going to show the possession and control of the personal defendants over the sidewalk at the place in question and that the obligation was upon them to make the repairs. [Rusher v. City of Aurora,
Other points ar.e raised which probably will not recur on a retrial of the case and we need not go into them.
The judgment is reversed and the cause remanded.