33 Mo. App. 555 | Mo. Ct. App. | 1889
This action is for a personal injury occasioned by a defective sidewalk. The petition among other things charges : “ Tha,t the plaintiff, in the nighttime of the day aforesaid, was lawfully walking upon said sidewalk, on said street, and, wholly unaware of any
The answer was a general denial and the plea of contributory negligence. There was a verdict and judgment for plaintiff and defendant appeals. The cause of the injury, and the injury itself, were thus described by plaintiff : Live in the city of Plattsburg ; have lived here all my life ; I am forty-one years old; my occupation is sewing ; I sew and wash and iron and do all my house-work, and go from home when I can get work. On December 19, 1886, I was at the Methodist church at preaching. O n that night I was walking along and stepped into a hole ; it threw me down by the walk into the gutter ; it was on Maple street on the north side, near the north Methodist church, near the southwest corner of the church lot and opposite Judge Porter’s residence. I live in the west part of town. That was my usual route to church. I hardly ever went any other way. I was walking along and it was dark and I stepped into the hole with my left foot. Mr. Powell
I. The objections urged as to the petition stating that defendant “stepped or fell into said hole” are hypercritical. The defect in the walk which defendant is charged with negligently permitting was that the boards composing the walk at that point were laid across decayed and rotten stringers and in consequence were loose and subject at any time to become displaced. It is not pretended that the hole in the walk, resulting from a displacement of a board, had been there sufficiently long to charge the defendant with notice, but that the loose board and rotten stringers had.
By a portion of plaintiff’s instruction number two, the jury were told that.it did not follow that defendant was not liable “ because passers-by ” did not observe the
II. It is next assigned for error that the court permitted plaintiff to show that defendant repaired the sidewalk the morning following the accident. It was formerly held in many courts, and is still maintained by some, that such evidence was admissible, for the purpose of showing negligence. But such is not a just rule. Brennan v. City of St. Louis, 92 Mo. 482. “ Precautions taken subsequent to an accident do not involve an admission that the prior ones were insufficient and negligent.” Nally v. Carpet Co., 51 Conn. 524. The question of negligence should be determined by what was known, or should reasonably have been known,
The second instruction offered for defendant was refused, and one in its stead given by the court of its own motion, which we think fully and pointedly covered the matters at issue. The scope of the third instruction refused was sufficiently covered by those given. There were Other objections called to our attention by counsel, but an examination of them satisfies us that they are not of sufficient moment to justify a reversal of the judgment. It is accordingly affirmed.