104 Mo. App. 616 | Mo. Ct. App. | 1904
This suit was begun in the circuit court of Jackson county and taken by change of venue to Lafayette county where it was tried and appealed to this court.
The plaintiff sues for damages claimed to have been sustained by reason of a fall caused by the slippery condition of defendant’s sidewalk. The evidence developed that plaintiff slipped and fell on the east side of Cherry street about twenty feet north of the comer of Thirteenth street, on January 11, 1901. Prior to the time of her fall and injury there had been a fall of snow and sleet which the plaintiff’s evidence tended to show had mostly disappeared. But this was controverted by the defendant. Plowever, there was evi
There was a verdict for the plaintiff and defendant appealed.
It is one of defendant’s contentions that the court should have sustained its demurrer to the evidence; but the facts stated plainly show that it was a case for the jury. It is the law that a city is not liable for the slippery condition of its streets caused by ice upon its sidewalks, unless it be that “the ice is so rough and uneven, or so rounded up, or at such an incline, as to make it an obstruction and to cause it to be unsafe for travel with the exercise of ordinary care.” Reno v. St. Joseph, 169 Mo. 642. It was therefore a question for the jury under the evidence to determine whether the sidewalk under the condition described constituted an obstruction such as to render it unsafe for travel. In Reedy v. St. Louis, 161 Mo. 523, it was held: “Where the sidewalk is in fact rendered dangerous to pedestrians because of slippery ice formed from the accidental or incidental discharge of water, such not being the prevalent condition of .sidewalks at the time, it is the duty of the city to cause the danger to be removed within a reasonable time after it has notice or by the exercise of ordinary care could have discovered the dangerous condition. ’ ’
Instruction number one is objected to by defendant
While the plaintiff does not admit that said instruction is faulty, she claims that if it should be so held, the fault was cured by defendant’s instruction number one. It must be admitted that said instruction contains many curative properties. It practically covers the whole
‘ ‘ The jury are instructed that the defendant, Kansas City, is under no obligation to the traveling public who may use its sidewalks to remove from such sidewalks sleet or ice which produces a slippery condition only, nor is it responsible for injuries sustained solely by reason of any of its sidewalks being in a slippery condition because of ice or sleet thereon. Nor is it responsible merely because the ice or sleet is rough, or uneven; unless you find from the evidence that the ice or sleet where plaintiff claims she fell was so rough or uneven that its roughness or unevenness made it an obstruction, and caused the sidewalk to be unsafe for travel with the exercise of ordinary care, .or find that it had been permitted to accumulate and remain upon the walk, until, by thawing and freezing, it became an obstruction, and thereby rendered the sidewalk unsafe for travel; and that the defendant city had knowledge of such obstruction, or by the exercise of reasonable care might have had knowledge of such obstruction long enough before the accident to have removed the same before the accident, or by the exercise of reasonable care, then the defendant is not liable, and your verdict should be for it. ”
In Blackwell v. Hill, 76 Mo. App. 46, this court held: “An instruction for the plaintiff which was incomplete in that it did not leave to the jury the question whether the sidewalk was reasonably safe, is supplemented' by ample instructions on this point given for the defendant, and the error is nonprejudicial.” In Squiers v. Kansas City, 75 S. W. 194, court also held: “Error in plaintiff’s instruction that if a loose plank rendered the sidewalk ‘ unsafe and defective ’ and plain-, tiff was injured thereby, to find for her, is cured by defendant’s instruction, that defendant would not be liable merely because there was a defect or imperfection in the sidewalk, unless it was such that on account
It is proper therefore to hold under the foregoing rule that the error complained of was not prejudicial. The plaintiff’s second instruction is similarly faulty. It is substantially like her number one. And we do not think it was misleading in view of what has heretofore been stated. Objections are made to other instructions of plaintiff but we do not think they are well founded. Nor did the court commit error in rejecting those of defendant not given.
For the reasons given the cause is affirmed.