| Mo. Ct. App. | Feb 10, 1902
The plaintiff sues as the husband of Eliza J. Holding, for injuries alleged to have been received by her by reason of the defective condition of a street of the defendant. There was a verdict and judgment against the defendant, from which it appealed.
The injury is alleged to have been received on Eighth street in the city of St. Joseph, Missouri, about twenty feet south of its intersection with Pacific street. Pacific street runs east and west and Eighth street north and,south. On November 9, 1899, the plaintiff’s wife, who was on her way from her own home to the home of a Mrs. Littlejohn, who lived south of said intersection of Eighth and Pacific streets and on the east side of said Eighth street, was injured by falling into Eighth street from the space left for a sidewalk along said street.
. The evidence showed that as she approached Eighth street from Pacific street, just a short distance from said intersection, she left said last-named street and traveled across the comer of a vacant lot to Eighth street. Across the corner of said vacant lot was a beaten pathway which she was following at the time, which pathway had been used for several years, by foot passengers. It was in the nighttime, and very dark, as there was little street lighting near that point. There were no regularly laid sidewalks on the sides of either Pacific street or Eighth street. Several weeks or months before the date of the aebident; Eighth street had been graded, which grading left an
It does not appear from the evidence that the wife was familiar with the locality or had ever traveled the route she was then pursuing, but the daughter knew the route. As this case must stand or fall on the evidence of this witness, we will quote from her testimony, that part that has the most important bearing on the issue involved. After detailing the route traveled in reaching Eighth street, she testified as follows:
‘‘Q. Now just tell what happened there, if anything, to your mother, and how it happened? A. We went on west-on Pacific street, and we turned south, and we were going over to Eighth street, and she fell, over in Eighth street over the bank. Q. State how you were traveling, whether you continued along the sidewalk on the south side of Pacific street,*147 or turned from it? A. We turned from it. Q. "Which, way did you go from tbe sidewalk? A. Tbe southwest. Q. How were you and your mother walking at tbe time she got hurt — on which side of you was she ? A. She was on the side a little in front. Q. And you were walking westward, I believe you said ? A. Yes, sir. Q. And when she fell, about how far from her were you, about how far away were you ? A. She was just a few steps ahead.”
The defense was a general denial and contributory negligence. Upon the conclusion of. all the evidence the defendant asked the court to instruct the jury to find a verdict for it. This the court refused. The defendant’s claim is that, under the circumstances shown to have existed at the time, it owed the plaintiff’s wife no duty whatever, and that the injury she received was the result of her own negligence. Under the circumstances detailed, the plaintiff claims that the finding of the trial court should be upheld, and cites many cases to sustain his view. We will notice a few of them. In Brennan v. City of St. Louis, the facts were that, a ditch extending across the street had been made by running water, one or two feet deep and of a like width, and that the plaintiff, a child of three years old, who was on the sidewalk, was knocked into the ditch by the accidental stumbling of another child against her. Both fell into the ditch together, the fall breaking plaintiff’s leg. The court held that the condition of the street was not reasonably safe. The ease is different from the one under consideration. The ditch in the one instance extended across the street and sidewalk, and the defect was one which every traveler would certainly encounter in passing over it. No want of care was attributed to the child who was injured, and while the ditch was not the sole cause of the injury, the injury would not have resulted without it. Staples v. The Town of Canton, 69 Mo. 592" court="Mo." date_filed="1879-04-15" href="https://app.midpage.ai/document/staples-v-town-of-canton-8006245?utm_source=webapp" opinion_id="8006245">69 Mo. 592, was a case where the City of Canton failed to erect side-railings to a bridge in a public street. The court held that under the facts in that case, whether the failure of the
■ There is a marked difference in this case from all those cited. The question here is clearly presented as to whether a city is liable for an injury to a person who steps off a sidewalk other than at the usual place provided for crossing from one side to the other side of a street on a dark night without proper caution. It is a matter of general knowledge that streets are constructed with a depression or gutter next to the sidewalks, for the purpose of drainage. We know of no general rule as to the depth these gutters should be constructed in all cases. Rut it is safe to say, from the variety of circumstances, for instance, the topography of the locality, their depth and width are not necessarily uniform, but on the contrary must differ in that respect. The gutter in this case was
The ditch under consideration having been found by the jury unsafe and dangerous, upon ample testimony as shown by the record, the only remaining question is, was the plaintiff’s wife, under the circumstances, using such care as the law required of her ? The law presumes that she was exercising reasonable care unless the evidence shows to the' contrary. The burden of showing this fact devolved, under the general rule, upon the defendant, unless it is made to appear by the proof of the plaintiff. The wife, during a dark night, after leaving the sidewalk on Pacific street, left the same before its intersection with Eighth street, continued her way across a vacant-lot following a path until she came to the sidewalk space on Eighth street, on and over it, until she fell into the street. This, as shown, was all done without caution or hesitation. She was entirely unacquainted with the locality, and must be held to have known that she was not at the usual and ordinary street crossing. Not only this, but she was, also, at the time she fell, in advance of her daughter Lena, who had a previous knowledge of the locality. Had she been attempting to pass into the street at the intersection of the two streets, she would have been justified in acting upon the presumption that the way was reasonably safe, for the crossing at such a place is but a substitution for the sidewalk, which it was the duty of the city to provide.
It is only the duty of a municipality to keep its streets in a reasonably safe condition for the use of the public who travel over them in the usual and ordinary manner, and when it is shown there has been a neglect in that respect, and that a per
But it is claimed by the plaintiff that prior to the grading of the street in question, the city had, by permitting the traveling public to follow the beaten track across the vacant lot and across its sidewalk space into Eighth street, created a license for them to so travel, and that it Was negligence after the grading was done, not to have had a light at said point, or barrier, so as to prevent accidents. A sufficient answer to-all this is that, it is common knowledge that persons will travel across vacant lots and into the streets at unusual places, and there is no law against or way to prevent it. The authorities cited by plaintiff on this question have no application to this case whatever.
We think the court should have instructed the jury, under the law and evidence, to find for the defendant. With this view of the case, it becomes unnecessary to notice other alleged errors. The cause is reversed.