173 Mo. App. 711 | Mo. Ct. App. | 1913
—The plaintiff sued a partnership and the city to recover damages caused by stepping into a coal hole in the sidewalk on the south side of Twelfth street near the southeast corner of Twelfth and Walnut in Kansas City, Missouri. This coal hole was near the center of the sidewalk and in front of the business house of the defendant partnership: It had for a cover an ordinary iron lid, but the partners used the basement as a room for dishwashing, and were in the habit of removing this lid each morning and leaving it off during the day to let air into the basement.
Plaintiff testified that, at the time she was hurt this iron lid was off and the hole was covered with loose boards on which was set a spiral wire frame, or basket without bottom, not fastened in any way. She testified that she did not know the hole was there, that many persons were passing that point and that when she met some pedestrians on the street at that point,
The partnership defendants in their testimony admitted that the hole was there, that plaintiff fell in, that they had removed the regular lid for ventilation, but that the hole was protected by an arrangement of boards resting horizontally across the hole with perpendicular boards sticking down into the hole and extending about two feet above the sidewalk, the whole so securely bound together with wire as to constitute a complete cover for the hole and rendering it impossible for plaintiff to fall, into the hole and be injured thereby. Nevertheless the fact cannot be.gainsaid that plaintiff did fall therein and was injured.
-The regular lid for the hole was not defective in any way and was there where it could have been replaced in a moment’s time, and was usually put on at night. The hole was round and about 18 inches across. There was testimony that the lid was taken off in the morning, and, in addition to this, one of the partners testified that they usually took it off about seven o’clock in the morning and that he did so at that hour on the day in question, which was the 30th of June, 1908. This evidence by the partner as to the precise hour it was taken off was excluded as against the city but was admitted as against the partnership. We presume that the reason it was excluded was because the city was not notified of the taking of the deposition. The objection to the evidence of the partner was simply on the ground that the city was not present when the deposition was taken. Objections to conversations between plaintiff and the partner had been sustained as to the city and when the partner’s deposition was read, the court sustained an objection to it as to the
The point in the street in question is one of the busiest and most crowded and travelled parts of the city. The Twelfth street car lines and the Walnut street ear lines cross at that corner and there is constant passing back and forth on the sidewalk at the place of the accident. The injury occurred at 1:30 p. m.
The jury found for plaintiff, and against all the defendants, in the sum of $1000. Only the city has appealed.
There are three errors complained of. The first is that plaintiff’s third instruction tenders an issue not included in the pleadings. This contention is based on the fact that the petition alleges that the lid was off and the hole negligently covered with boards laid loosely across while the instruction included, in addition to the boards, a coil of wire. But we do not think a new issue was thereby tendered. Of course, the instruction must not contain an issue not included within the pleading. But the issue was whether the coal hole was' negligently permitted to remain open or imperfectly covered so as to be dangerous to passing
The next point is that error was committed in plaintiff’s instruction No. 4 because it did not inform the jury that the city was entitled to a reasonable opportunity, after having knowledge of the defect, in which to put back the cover or make the hole safe. The right of “reasonable opportunity” to properly cover the hole means nothing more than a “reasonable time in which do remedy the defect.” Under the evidence in this ease the only remedy required was to replace the iron cover that was there, which could be done the moment knowledge of the insecure covering of the hole was received. It is not like a case where a defective condition must be repaired and a reasonable time must elapse to enable that to be done. But, even so, the instruction says .that the verdict can be against the city only in the event that the city knew, or, by the exercise of ordinary care, could have known of the
Defendant’s third and last objection is to plaintiff’s instruction No. 1. The claim is that it requires the city to exercise a higher degree of care than ordinary care to keep its sidewalks reasonably safe for travel. We do not think the instruction does this. In fact, the instruction is not dealing with the care required of the city but only with the right of plaintiff to presume, in the absence of knowledge to the contrary, that the street was reasonably safe. Wherever the care required of the city was mentioned in plaintiff’s other instructions it was described as ordinary care, and the jury were told that the city was not an insurer of the safety of its citizens, nor required to keep its streets absolutely safe but only to keep them in a reasonably safe condition. We do not think the .instruction complained of dealt with the degree of care required by the city, but,- even if it could be so considered by a critical and hair splitting discrimination, it could not have misled the jury. And were we to reverse and remand the case on this ground we would be going contrary to Sec. 2082, R. S. Mo. 1909. There are no objections going to the merits of the case, and, not finding any prejudicial error in the record, it is our duty to affirm the judgment of the trial court. It is so ordered.