101 Mo. 613 | Mo. | 1890
In 'the argument it is conceded that the defendant being charged by its charter with the duty 'to keep its highways in repair, and having ample means provided by the taxing power to discharge it,
To establish the character of the locality, where the injury occurred, as part of a public street, nothing more was essential than to show that it was in actual possession of the city and open to, and used by, the public as a thoroughfare at the time. This plaintiff did. It was not necessary to prove any formal dedication or appropriation of the street.
That defendant was bound to exercise ordinary care to keep the place in question (as well as other portions of its traveled.streets ) in a condition of reasonable safety for the use of the public by night as well as by day is a proposition too clear to require discussion.
We consider the evidence offered by plaintiff (of which the substance is presented in the statement accompanying this opinion) as tending to establish a breach of that duty.
It appeared that there was a considerable gap in the traveled cross-walk; that the place was totally dark, and that plaintiff, in endeavoring to pass over it, slipped, fell and was injured. It further was shown that the gap referred to had been in existence at least three months and was readily noticeable.
Exactly what length of time would furnish evidence of notice to the municipal authorities of such a defect would be difficult to say. “ Five to twenty days ” was held sufficient in a recent decision (City of Griffin v. Johnson (1890), 10 S. E. Rep. 719 ), and three months in another ( Tice v. Bay City (1889), 44 N. W. Rep. 52), and two months in another (Market v. St. Louis (1874), 56 Mo. 189). The circumstances of each case must be considered with reference to the nature of the defect in question. In that now before us we think the evidence was sufficient to fairly justify the inference that defendant had timely notice of the defect, and, therefore, tended to prove that fact.
We are of 'opinion that there was a case made in this instance, for. the submission of that issue to the jury-
II. Prom the record and briefs of counsel we infer that the trial court regarded plaintiff as chargeable with contributory negligence in the premises, and for that reason forced him to a nonsuit. In so doing we think there was error.
It cannot properly be declared as matter of law that plaintiff failed to exercise ordinary care unless the facts in evidence exclude any other fair and reasonable inference on the subject. We do not think such is their effect here.
Plaintiff admits he was aware of the gap or opening in the crossing but the alleged defect in it was not of such nature as to rendef its use necessarily dangerous to a person ordinarily careful. His knowledge of it was entitled to consideration as bearing on the issue of his negligence, but it was not decisive of that issue nor did it of itself preclude a recovery. Lowell v. Watertown (1885), 58 Mich. 568; Smith v. St. Joseph (1870), 45 Mo. 449.
■ That plaintiff stumbled and fell at the point of the alleged break in the cross-walk may be, perhaps, ascribable, as a matter of fact, to his carelessness, but in the circumstances of his position at the time we think negligence cannot properly be asserted of his conduct as a conclusion of law.
The issue of his negligence in the premises should have been submitted to the jury for their finding.
We are all of opinion that the judgment should be reversed, and a new trial granted. It is so ordered.