144 Mo. App. 155 | Mo. Ct. App. | 1910
Plaintiff, a woman sixty-five years of age, sued the city of Hannibal, a municipal corporation, to recover damages for personal injuries alleged to have been caused by the negligence of defendant in maintaining a public sidewalk in a defective condition for travel. A trial of the' issues resulted in a verdict and judgment for plaintiff in the sum of two thousand dollars. Defendant appealed and contends in argument, first, that the jury should have been directed by the court to return a verdict for defendant; second, that error was committed in the rulings on the instructions and, third, that the verdict was excessive.
The injury occurred about nine o’clock p. m. February 17, 1907, on Sixth street, a public thoroughfare, the general course of which is north and south. Plaintiff and her granddaughter, returning from church, were walking north on the granitoid sidewalk on the west side of the street. She was not in the habit of using that sidewalk in going to and from church as it was not the most direct way, but on this occasion, the weather being pleasant, she chose the longer way. No street lamps were burning; the moon was shining, but it was low in the west and the sidewalk lay in the shadow of buildings. Plaintiff .was not inattentive to the sidewalk, but was conversing with her granddaughter who walked a few steps in advance of her. While thus proceeding, plaintiff tripped on the hinge of a cellar door in the sidewalk in front of a confectionery store, and fell heavily forward, sustaining the injuries of which she complains. The sidewalk was nine feet wide and the opening to the cellar from the
These facts are collected from the evidence most favorable to plaintiff. All of them of an accusatory character are strongly contested by the evidence of defendant, but in passing on the demurrer to the evidence, it is our duty to consider the essential facts and circumstances of the case from the viewpoint of plaintiff’s evidence, and from this position, we have no hesitancy in saying that the inference is fair and reasonable that negligence of defendant was the proximate cause of the injury.
We recognize as sound the rules of law invoked by defendant. In cases of this character, negligence is the ground of liability; the city is not an insurer against accidents (Dillon on Municipal Corporations, section 1019), and “Where the defect is hidden and the city has no actual knowledge of its existence, and the evidence fails to show that it existed a sufficient length of time to justify the assumption that by the exercise of ordinary care and diligence the city might have known of its existence, there is no such negligence as will justify a recovery for injuries resulting from the accident.” [Badgley v. St. Louis, 149 Mo. 122; Carvin
We do not agree with counsel for defendant that plaintiff should be held guilty in law of contributory negligence. At most, her conduct was an issue for the jury to solve. Counsel comment on the fact that she chose the longer way home not from necessity but “for the purpose of taking a walk, the weather being pleasant and the night moonlight.” She had a right to choose any route over the public streets that appeared reasonably safe and her purpose in going one way instead of another was immaterial. Further, stress is laid on the fact that at the time she tripped, she was looking at her granddaughter and not at the sidewalk. before her. Counsel are trying to hold plaintiff to the duty of exercising extraordinary care. The sidewalk, though in shadow, was sufficiently lighted for a person observing ordinary care to tell whether or not the way ahead was obstructed by objects of any magnitude and the evidence of plaintiff shows that she bestowed reasonable attention to her way. She was not required to give the sidewalk her undivided attention, but she might rely to some extent on the presumption that it was free of snares and pitfalls; that the city had performed its duty.
The verdict was not excessive. Plaintiff received serious and painful cuts and bruises on her face, shoulder and back. One of her kidneys was dislocated and became a “floating kidney.” Before her injury, she weighed one hundred and eighty-five pounds and at the time of the trial, she weighed but one hundred and forty-two pounds. The physician who attended her testified that she is a nervous wreck and that her condition will be permanent unless she undergoes a major operation of great danger to a person of her age. The allowance of two thousand dollars, as damages for such injuries certainly does not .bespeak passion or prejudice on the part of the jury.
There is no substantial error in the record and, accordingly, the judgment is affirmed.