184 Mo. App. 106 | Mo. Ct. App. | 1914
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff received his injury through stepping into a hole in defendant’s sidewalk adjacent to its tracks at the point of a street crossing for pedestrians. Defendant owns and maintains its railroad across Fifth street, a public thoroughfare in the city of Poplar Bluff. It is said the railroad embankment is about two feet above the surface of the street at the place at which it crosses Fifth street. Fifth street is a public thoroughfare in the city of Poplar Bluff and runs north and south. A public sidewalk is maintained along the west side of Fifth street for the use of pedestrians. Immediately adjacent to the railroad track, on the north side of it, there is a depression or drain, and defendant constructed a sidewalk from its railroad track across this drain, to connect with the sidewalk in front of Holcomb’s property immediately
The portion of the walk across such drain which defendant constructed and maintains is about seven feet in width from east to west and probably ten feet long from north to south. The east side of defendant’s walk is flush with the east side of the walk in other portions of the street, but on the west side of defendant’s walk it lacks nineteen inches from abutting the building line, that is, the west side of the street. Defendant’s walk is constructed of heavy planks laid lengthwise from north to south, the south ends of which are made fast to a beam affixed to the ties under its railroad tracks, while the north end of such planks lying lengthwise are made fast to the sidewalk in front of Holcomb’s property. Defendant’s sidewalk seems to be well enough, save a space nineteen inches wide on the west side of it, adjacent to the building line, which is open and unprotected. Into this space, nineteen inches wide, plaintiff stepped and received his injuries through being precipitated to the bottom of the drain below, because of defendant’s failure to in anywise inclose of guard it.
It appears plaintiff was familiar with the walk and its construction as he passed over it every day of the week, and, indeed, he says he had stepped into the identical place the summer before. Defendant was fully aware of the condition of its walk, for besides constructing it in a manner so as to leave a space of nineteen inches uncovered on the west side and adja cent to the building line, the opening therein had con tinued to thus exist for more than a year before plaintiff was injured. It appears, too, the east side of this portion of the walk was some inches higher than the west side — that is to say, it sloped several inches to the westward where the nineteen-inch space immediately above the drain and adjacent to the building
His evidence tends to prove that, though he knew the condition of the walk, he stepped into the opening because he was unable to discover its location therein for the reason that darkness prevailed.. Plaintiff says he exercised caution in approaching and endeavoring to pass it, hut as there were no guardrails or signals or anything to indicate the precise location of the uncovered portion, he stepped off of the end of the walk in front .of Holcomb’s and into the ditch.
Because plaintiff says he knew of the condition of the walk and had fallen into the same hole during the summer before, it is earnestly argued by defendant that we should declare hiin guilty of negligence as a matter of law and thus deny his right of recovery, hut we are not.so persuaded. Mere knowledge of a defect in the walk is not sufficient to preclude the right of a pedestrian to recover for an injury received by stepping into it, if other facts and circumtances in evidencé tend to show that he was in the exercise of ordinary care at the time. Obviously one may use the sidewalks in the public thoroughfares of a city without .being declared guilty of negligence in so doing, if they are reasonably safe for the purpose. Here, defendant had constructed a sidewalk across the ditch and adjacent to its tracks, connecting with the sidewalks on the west side of Fifth street, whereby it furnished seven feet of surface which was safe for cross
Plaintiff’s first instruction is a very long one and it would unduly extend tbe opinion to copy it here. It is criticized in tbe brief, but we are not pérsuaded that defendant was prejudiced thereby. Tbe chief
Other instructions on the part of plaintiff are complained of, but obviously there is no merit in the argument directed against them, when considered in.connection with the facts of the case. On the whole record before us, it appears defendant was negligent with respect to its duty pertaining to the construction and maintenance of the sidewalk. Indeed, this proposition seems not to be controverted. We are commanded by section 1850, Revised Statutes 1909, to disregard any error or defect in the proceedings which shall not affect the substantial rights of the adverse party and that no judgment shall be reversed, by reason of such an error or defect. Furthermore, section 2082, Revised Statutes 1900, commands that no judgment be reversed on appeal unless the court shall believe that error was committed against the appellant materially affecting the merits of the action. It is clear enough that, though the several instructions of plaintiff complained of by which the issues of fact were submitted are in-artificially drawn, and, it may be, erroneous in some cases, they contributed no substantial injury to defendant here. That defendant’s negligence appears is not to be questioned and the real controversy in the case pertained to the alleged contributory negligence of plaintiff. That matter was submitted to the jury well enough.
The judgment should be affirmed. It is so ordered.