69 Mo. 79 | Mo. | 1878
On the 19th day óf December, 1873, the plaintiff was injured in consequence of a defect in the sidewalk on west Ninth street, between Mulberry and Hickory
1. The court instructed the jux*y : That, on the 19th day of December, 1873, the defendant was, and for a long
2. If you find for the plaintiff you will assess- his damages at such a sum as you shall believe from the ■evidence will fully compensate him for the injuries received, and in a sum not exceeding $10,000 ; and in arriving at the amount you should take into consideration the extent and nature of the injuries, if any, received by plaintiff, together with the suffering caused by reason of such injuries.
The defendant moved the court to give the following instructions : 1. The jury are instructed that the passage of ordinances by the defendant, establishing the grade of Ninth street, and providing lor grading the sidewalks and -constructing sidewalks thereon, was not doing, or causing anything to be done for fitting or preparing for public use, that part of Ninth street intended or designed for sidewalks on the street.
2. If, from the evidence, the jury find that the defendant never, before plaintiff was hurt, constructed nor caused to be constructed a sidewalk on the north side of Ninth street between Mulberry and Hickory streets, and also find that the sidewalks at the point where plaintiff was hurt, at the
3. If before plaintiff was hurt, defendant caused that part of Ninth street between the sidewalks to be graded and prepared for use, and the same was, when the accident to plaintiff occurred, used by the traveling public, and was reasonably safe and sufficient for the wants of such traveling public, and defendant had not before, or at the time the plaintiff was hurt, done, or caused to be done, anything for fitting or preparing for public use the north sidewalk of Ninth street between Mulberry and Hickory streets, and the hurt plaintiff seeks to recover for was received while he was traveling on that part of such street, not fitted or prepared for use, then the jury must find for defendant.
4. If, from the testimony, the jury find that the defendant did not, before the hurt and fall of plaintiff, actually commence, or cause to be commenced, the improvement of the north sidewalk of Ninth street where plaintiff was injured, they must find for defendant.
5. If the iujury plaintiff seeks to recover for resulted directly from his own carelessness and want of care, then the jury must find for defendant, although there may have been some negligence or want of care on the part of defendant, which also contributed to cause the injury to plaintiff.
6. If, before plaintiff was hurt, reasonable precautions had been taken to prevent injury to persons using the
It is contended, on behalf of the city, that inasmuch as the walk by which plaintiff was injured, was not built by it or in pursuance of its requirements, but was built by the owners of the adjacent property, the city is not liable,. and that it cannot be held liable for the condition of the sidewalks until some work has been done, or some improvements have been made thereon by the city, and that no such improvements can lawfully be made except in pursuance of some ordinance. The sidewalk is a portion of the street set apart by the city for the exclusive use of pedestrians, and is as much under the control of the city as that portion of the street set apart for the use of vehicles. It is the duty of the city, whenever a street? is required for public use, to put and maintain the same, or as much thereof as the public convenience may require, in a reasonably safe condition for public travel; and this is a duty which it owes to pedestrians as well as persons using vehicles; and for injuries arising from a neglect of this duty che city will be liable. And if the adjoining proprietors, or others, by obstructions, or-unauthorized structures of any kind within the limits of a street which has been opened for public use, render the same unsafe for travel, and the city has notice thereof, and fails to remove or repair the same, it will be liable for any injury resulting therefrom. Dillon Mun. Oor., §§ 789, 790, 791. And this liability attaches to the city whether it adopts the legislation necessary for that purpose or not. It is its duty in such cases to adopt it.
In the present case, however, it appears that in March, 1873, ordinances were passed providing for grading the north side of Ninth street between Mulberry and Hickory streets, and for the erection of sidewalks thereon; and in July of the same year another ordinance was passed de
We see no error in the action of the trial court, and its judgment is affirmed.
Arrirmed.