139 Mo. App. 673 | Mo. Ct. App. | 1910
Action for damages alleged to have been received by plaintiff by reason of a fall upon a cross walk across Lynn street on the west side of Boonville
Appellant contends that this cause ought to be reversed for the reason that the evidence conclusively shows that the plaintiff was guilty of contributory negligence, and, hence, cannot recover. It is also contended that the court committed error in refusing instructions asked by defendant.
Appellant asked an instruction in the nature of a' demurrer to the testimony upon the theory that plaintiff’s negligence would preclude a recovery. Wé have carefully gone over the testimony in this case, and do not think this position of appellant can be sustained by the testimony. Plaintiff testified that she knew that the boards on the walk cupped up at the ends, but did not know they were rotten underneath, and did not know that the boards would give down when stepped upon. That she and other persons had passed over this walk a number of times, and that on the occasion of the accident she was walking along with care as she usually did. The evidence also shows that this cross walk was located in a populous section of the city and was traveled over a great deal by residents of the city.. These facts, if true, would not show the plaintiff guilty of contributory negligence, but rather would show that she was using proper care at the time of the accident. The fact that the boards were cupped up at the ends would not
The question of plaintiff’s contributory negligence was one for the jury under the evidence, and was submitted to them by appropriate instructions. The jury found in her favor and that is binding upon us.
The next question is that of notice to the city of the defective condition of the walk, and opportunity to repair it before the injury. On this issue there was ample testimony that the walk had been out of repair a sufficient time that knowledge on the part of the city could be inferred therefrom. The only difficulty lies in the fact that a witness was permitted to testify that he had notified the city clerk of the condition of the walk sometime before the injury. It is now contended by appel-lant that it was no part of the duty of the city clerk to look after the repair of the city walks, and, hence, notice to him was not notice to the city, and an instruction to that effect was asked by defendants and refused by the court. We agree with the appellant that the city clerk was not the proper official to notify of the condition of the walk, but we are confronted with the following facts. When this testimony was offered it was allowed to go in without objection and defendant placed the city clerk on the stand to deny that such notice had been given him. After having treated the question of notice to the city clerk as an issuable fact during the taking of testimony, we are of the opinion that it was not error to refuse the instruction asked which told the jury that notice to the city clerk was not notice to the city. This instruction, if given, would have the same practical effect as one withdrawing the objectionable testimony from the jury, and a party who allows testimony to go in without objection, should not be heard to complain' if a court should afterward refuse to withdraw it. [Maxwell v. Railway, 85 Mo. 95; Flannigan
In this case, the evidence showed that the. walk had been out of repair for from one to four months and the city street commissioner had passed by it several times before the injury, and had ordered it repaired one or two days before the injury, and the question of notice, as shown by this testimony, was submitted to the jury by correct instructions, hence, the verdict could hardly have been otherwise than as it was, even if this objectionable testimony had been excluded.
The defendant also asked an instruction to the effect that plaintiff was required to exercise greater care while passing over a cross walk than upon an ordinary sidewalk. This instruction was refused, and, we think, rightly so. It is the duty of a. city to keep all its walks in a reasonably safe condition for travel, and we know of no rule of law, nor can we see any reason that would justify the position that a party is required to use greater care upon a cross walk than upon any other walk.
The case was fairly tried; the evidence is ample to sustain the verdict and the judgment will be affirmed
