This is аn action against the city of Sedalia for personal injuries sustained by plaintiff from falling on a crossing of one of the public streets. Plaintiff charges that her fall was сaused by a negligent breach by the city of its duty to exercise reasonable care to maintain the crossing (which was of stepping-stones) in a.reasonably safe condition for travel. The petition alleges “that said crosswalk was made of large stepping-stones, set and imbedded in the ground; that prior to said 22d day of February, 1913, the defendant had negligently permitted said stepping-stones to become uneven, worn, smooth and sleek from long and constant use so as to be dangerous and unsafе to
The answer denies the allegations of negligence and alleges that the injury of plaintiff was caused by her own lack оf care and by the presence on the stones of recently fallen snow. A trial by jury resulted in a verdict and judgment for plaintiff and defendant appealed.
The only questions raised in the brief of defendant relate to the demurrer to the evidence which it is urged should have been given. As to such questions it is our
The injury occurred early in the night of February 22, 1913, at the intersection of Thirteenth street and Wаshington avenue. Plaintiff lived at the southeast corner of these streets and was injured while returning home from a visit to her brother who lived two blocks west on Lamine avenue аnd just north of Thirteenth street which runs east and west. She crossed Thirteenth street at Lamine avenue and proceeded eastward along the south side of Thirteenth streеt to the crossing of Washington avenue and her fall occurred when she was in the middle of the crossing. Washington avenue was not paved and the crossing consisted of stеpping-stones set with spaces between them. They had been there many years and originally had been flat on top but for, perhaps, three or four years, thosе in the parts of the roadway most used by wagons and other vehicles had fallen into a condition of unsafety to pedestrians owing to the wearing away from contаct with wagon wheels which had so rounded the tops of the stones as to render them convex and consequently unsafe for use by pedestrians, especially in wet оr snowy weather. In dry weather people who used the crossing, including plaintiff, generally avoided the stones and walked in paths on either side. A light snow which had recently fаllen covered the stones and plaintiff states she realized the danger of slipping and falling but concluded that she could cross in safety by exercising care cоmmensurate with the apparent requirments of the situation. She had proceeded to the eleventh stone which was rounded on top when her foot slipped intо the space between that stone and the one beyond it in such a manner as to cause her to fall and break her leg. The stone on which plaintiff slipped is described by one witness as “very much worn, especially on the east edge of the stone and where the wagons have rubbed it off smoothly, it is rounded where a
The tops of the stones, as stated by various witnesses, were from six inches to a foot above the surface of the roadway. Plaintiff, in common with other pedestrians, had used them on occasions when they were wet or coverеd with snow. The argument that she was guilty in law of negligence that caused or, at least, contributed to her injury, is not well sustained. Her evidence negatives the charge of defеndant that in crossing on Lamine avenue to the south side of Thirteenth street she chose the more dangerous of two ways leading’ to her home. There were stepping-stone crossings in the other course that had been in as long and were in a like condition of repair. There appears to have been no advantagе as to safety in one way over the' other, but if it be true that plaintiff chose the less safe way, still she cannot be held guilty in law of negligence unless the way selected wаs so obviously dangerous that a prudent person would have refused to encounter its dangers. The fact that she knew the crossing in its defective state was more dangerous than it would have been if maintained in reasonable repair did not preclude her from using it if a reasonably prudent person in her situation would have thought the incrеased dangers could and would be avoided by the exercise of greater care than ordinarily would be required. The rule, as stated by the Supreme Court, is that “if he (the pedestrian) knows of a defect and it is not so obviously dangerous that no prudent person would attempt to use the street, he may still use the street provided he exercises that care which a reasonably prudent person would in like circumstances, but he is not bound, merely because he encounters a defect which a reasonably prudent man would think he could pass by the exercise of care, to avoid the street entirely.” [Heberling v. Warrensburg,
. We cannot say, as a matter of law, thаt the convex surfaces covered with a light coat of newly fallen snow were so obviously and imminently dangerous that a reasonably prudent person in the situation of plaintiff would have refused to take the risk of using the crossing in the manner and for the purpose the city was inviting her to use it.
We think the negligence of the city in allowing the stepping-stones to remain in that condition so long is indisputable, and need not be discussed, but it is argued by defendant that the recently fallen snow and not the defective state of the stones was the proximate cause of the injury. The rule is well settled that a city is not liable for injuries resulting from the general slipperiness of its streets or sidewalks occasioned by a recent precipitation of rain or snow (Holbert v. Philadelphia,
The judgment is affirmed.