190 Mo. App. 477 | Mo. Ct. App. | 1915
Lead Opinion
As a result of a jury trial the plaintiff obtained a judgment for $3000' against defendant on account of injuries received by stepping in a bole of a culvert in defendant city and it has appealed.
Intersecting Morgan street at an alley between Le$ and Delta streets, at the time of the accident, was a ditch over which was a concrete culvert. Morgan
Under points and authorities in appellant’s brief we have the following questions submitted for decision: I, II, IV and V, contributory negligence sufficient to defeat plaintiff’s right to have his case submitted to a jury; III, that where a path is worn along a part of a street that is not designed for public travel the city, by reason of the use thereof, does not invite the public to use it and, therefore, it is not liable in this case for a hole in a culvert into which plaintiff stepped; and VI, the trial court erred in admitting testimony of repairs of the footbridge after the accident.
I, II, IV and V. It is said the contributory negligence of plaintiff sufficient to take his case from the jury consisted in his reckless passage over the culvert, in the dark, when he knew the hole was there and that there was a safer way to have reached the roadway of Morgan street than over the culvert. The plaintiff testified that he saw this hole in the culvert two or three months before his injury, but assumed that it had been repaired. Knowledge of the defect in a walk does not alone preclude a recovery for an injury caused thereby. [Devlin v. City of St. Louis, 252 Mo. 203, 207, 158 S. W. 346; Lueking v. City of Sedalia, 180 Mo. App. 203, 167 S. W. 1152, and Border v. City of Sedalia, 161 Mo. App. 633, 638, 144 S. W. 161.] Under the facts of the case at bar it was for the jury to say whether the plaintiff was guilty of contributory negligence in the manner in which he passed over this culvert or whether he should have gone some other route.
III. This point is the principal one involved and the contention of the defendant thereunder must be
In the case at bar the defendant city had for years maintained this culvert with knowledge of its use by the public as a footbridge and it ought to be required to respond for the consequences of its negligence in maintaining it. To hold that it should not would be to in effect announce the rule that pedestrians should either use the dangerous footbridge or abandon the use of Morgan street, things the city cannot exact. The same degree of care is not required of the city in maintaining this footway as would be exacted in the populous part of the city as to its regularly constructed sidewalks, but such ways, as here involved, must be kept reasonably safe. [Warren v. City of Independence, 153 Mo. 593, 599, 55 S. W. 227.]
The defendant cites Holding v. City of St. Joseph, 92 Mo. App. 143, as sustaining the point here made but there (p. 142) it is stated that no showing was made as to why the plaintiff left a path along the sidewalk portion of the street at a place where no provision was made for a digression therefrom. The plaintiff was also following a cross-lot pa;th which the city had not adopted as a walk.
The record disclosing no errors and the jury having passed on the facts adversely to defendant the judgment must be and is affirmed.
Concurrence Opinion
CONCURRING OPINION.
For reasons unnecessary to state herein I have worked out this case along the lines on which to my mind the case should be decided and prefer to file my opinion which states the grounds on which I think the judgment should be affirmed.
The plaintiff, a minor, recovered through his next friend a judgment for three thousand dollars against the defendant, a city of the fourth class, as damages for personal injuries sustained. He stepped in a hole in a culvert which had been constructed by the defendant city in one of its streets, receiving severe injuries. There is no contention that the verdict was excessive.
The charge of negligence is that the city failed in its duty to keep the culvert in its thoroughfare in reasonably safe condition for travel, and that it knew of the defect in the culvert or by the exercise of ordinary care could have known of and repaired the same.
The issues raised are, first, Was the city negligent? and, second, that granted, Was the plaintiff negligent?
The injury occurred on Morgan street, a street running north and south at a point about midway between two streets running east and west and intersecting Market street. At' this midway point, leading west off Morgan street is an alley. There was a walkway along the west side of Morgan street at the place where a sidewalk would be and some gravel or chats had been spread on the same by the defendant. This walkway extended up to and beyond the alley intersection. Over this alley intersection, joining the walkway on either side, the city had constructed a bridge or culvert which we will call the sidewalk culvert. It was for pedestrians to use in traveling along the west side of Morgan street when going north or south. The city had graded Morgan street and left a ditch parallel with the walkway along the street on the west side to carry off water and it was several feet in depth. The water came down Morgan street from the north and from the south to the-alley referred to and then flowed west down the alley. The sidewalk culvert spanned the waterway leading west down this alley. The city had also constructed a concrete culvert across Morgan street near this place. Street lamps were maintained on this street but none lighted the street so as to make the hole in the culvert on which the injury occurred visible at night. In order that travelers might go from
The plaintiff had walked north on the west side of Morgan street until he reached the alley and then turned east across the ditch bridge to proceed on north in the street. Some little time before, that same evening, and while it was yet light he had gone south along the west side of Morgan street but had not passed over the bridge or culvert on which he was afterwards injured.
That a great many of the residents in that part of the city in walking north along' Morgan street turned east at this alley just as plaintiff did, crossing the ditch bridge and going into the street there, is shown by the evidence, and also in coming south along Morgan street pedestrians would come down the street from the north and cross over the ditch bridge and from there continue along the walkway. This use to which pedestrians put the street who went to and from the business part of the city (which was south of the place of the injury) had been carried on for a long time and a well-beaten pathway had been marked out by user as a way that pedestrians went over this ditch bridge that had the hole in it.
As to the foregoing there is little or no dispute.
This substantially states the facts disclosed by the record.
We hold that the city was guilty of negligence in leaving this bridge in the condition described; that the city had already exercised its governmental jurisdiction over this street and therefore owed the ministerial duty to see that it was kept in reasonable repair for travel is shown by the fact that it graded the street, put in a concrete culvert, spread chats on the walkway, put in a culvert across the alley intersection on the sidewalk line, lighted the street, and constructed the bridge on which plaintiff was injured across the ditch in the street, the same being put there for travel in and out of the alley. But defendant contends that it did not construct that bridge for pedestrians to travel
Was the plaintiff at the time he was injured exercising ordinary care for his own protection?
What the law is concerning contributory negligence in the use of a defective street or way which will
In view of the fact that plaintiff testified that at the time he was injured it was so dark that he could not have seen the hole without getting down and looking for it, he would fall without the rule requiring him to be reasonably careful to discover the defect and avoid it. “Reasonable care” does not require a pedestrian to become a street inspector and guard every step with his eyes riveted upon the sidewalk. [Ryan v. Kansas City, 232 Mo. l. c. 483, 134 S. W. 566, 985,]
Therefore, if plaintiff is to be denied a recovery in this case it must be on the ground that he knew of the existence of the hole; in other words, he must be held as a matter of law to have been, as an ordinarily prudent person from some past relation or experience with the hole, conscious of its existence there at that time and place, and this, from the evidence, is of course
Where a man passes over a sidewalk continually and sees or could see a defect existing therein to such a degree that all would agree that an ordinary person must know that it was there, the law will not let him gainsay it but will hold him to that knowledge attributable to the average man. That one must use his God-given senses, as an ordinary person does use them rings throughout the decisions; and, it might well be added, he must use his God-given faculties of mind as ordinary men exercise them. But no ordinary pedestrian is to be held to an extraordinary exercise of either.
What is the evidence in this case bearing on the question of plaintiff’s knowledge of the defect? He testified: “I was not acquainted with the conditions of this bridge.” Yet that might not excuse him if the evidence as to his experience and relation thereto could lead to no other conclusion than that he was acquainted with it. But he also testified that he had only passed over this bridge a few times; that he had noticed this hole once, maybe twice, but that the last time he recalled seing it was some three months before the injury; and that he had gone down that street the afternoon of the day the injury occurred but not over this bridge and that he did not see the hole. No court could as a matter of law charge him with -knowledge that the hole was there from this experience and relation thereto when he started over the bridge on this occasion. [See, Chase v. Railway Co., 134 Mo. App. 655, 114 S. W. 1141; Bradley v. City of Spickardsville, 90 Mo. App. 416; Deland v. City of Cameron, 112 Mo. App. 704, 87 S. W. 597; Smith v. City of Butler, 48 Mo. App. 663.]
The cases cited by appellant wherein recovery was barred on account of contributory negligence are those where the plaintiff admitted that he knew of the dan-, ger at the time, or those where a previous knowledge of the condition was such that the'facts related could only lead to the one conclusion that an ordinarily prudent person could not keep from knowing the situation. [See, Diamond v. Kansas City, 120 Mo. App. 185, 96 S. W. 492; Border v. City of Sedalia, 161 Mo. App. 633, 144 S. W. 161; Craine v. Street Railway Co., Wilson, and Kansas City, 246 Mo. 393, 152 S. W. 24; Ryan v. Kansas City, 232 Mo. 471, 134 S. W. 566, 985; Sindlinger v. Kansas City, 126 Mo. 315, 28 S. W. 857.]
We are cited to the case of Holding v. City of St. Joseph, 92 Mo. App. 143. We do not deem our opinion in conflict therewith, but if it is we are following later cases decided by the Supreme Court and are in perfect harmony with later decisions of the court that rendered that decision.
Both the sidewalk culvert over the alley and the ditch bridge were used by pedestrians in going along Morgan street, From the evidence, the condition of
Appellant’s assignment that there was incompetent evidence admitted is without merit.
The instructions fairly presented the case according-to our view of the law leaving it to the jury to say whether the plaintiff was guilty of contributory negligence.
Finding no reversible error in the record, the judgment should be affirmed.