Squiers v. Kansas City

100 Mo. App. 628 | Mo. Ct. App. | 1903

BROADDUS, J.

The plaintiff seeks to recover from the defendant city damages sustained by her by reason of the defective and dangerous condition of a certain sidewalk. The evidence showed that on the 13th day of March, 1901, while plaintiff, in company with her son, was passing over a sidewalk on the east side of West Prospect place in said city, at about fifty feet south of Twenty-eighth street, her son stepped upon one end of a board, which caused the other end to tilt up, thereby tripping plaintiff and causing her to fall, and by reason of which she was injured. She recovered judgment for the sum of $1,000, from which defendant appealed.

The contention of defendant is that the court erred in the giving and refusing instructions, and that the defect in the sidewalk in question was not so obvious as to impart notice. It is insisted that instruction number three given for plaintiff is erroneous and misleading, in that it did not submit to the jury the question whether or not the defect in the sidewalk was such as to render it on that account not reasonably safe, but instead, uses the words, “rendered said sidewalk at such time and place unsafe and dangerous.” That the expression, “unsafe and defective,” is not equivalent to the proper expression, “not reasonably safe,” and that because a sidewalk is unsafe and defective does not necessarily imply that it is not reasonably safe. Said instruction is as follows: “The court instructs the jury that the plaintiff is not bound to prove that any officer or agent of the defendant Kansas City, Missouri, had actual notice of the condition of the sidewalk in question. And if you find from the evidence that on the 13th day of March, 1901, there was a loose plank in the sidewalk on the east side of West Prospect place, sometimes known as Jarboe street, at a poiht about fifty feet south of Twenty-eighth street in said city, and that the looseness, if any, of said plank at said time and place rendered said sidewalk at said time and place unsafe and defective, and that plaintiff was injured by reason of such unsafe and defective condition of said sidewalk, and that a sufficient length of time had elapsed between the time, if any, when said sidewalk became defective and the date of the injury, if any, to plaintiff, for the city by the exercise of reasonable diligence to have discovered and repaired such defect, if any, in said sidewalk, then the city was negligent in not discovering and repairing said sidewalk.”

A similar instruction was considered in Robertson v. Railroad, 152 Mo. 382. It was there held that the instruction “in effect told the jury that plaintiff was entitled to recover if the depot platform was in an unsafe condition and out of repair, in consequence of which she was injured, however slight the defect may have been, while it was only required of defendant that it keep it in a reasonably safe condition for persons using it for the purpose for which it was intended, thus imposing upon defendant a greater burden than the law requires.” The mere fact that the sidewalk was unsafe for persons using it under the ruling in the above case did not render the defendant liable. If it was unsafe and defective to the slightest degree the jury would have been authorized to find for the plaintiff, although it might have been reasonably so, for the defendant would not be liable for every defect in its sidewalk. But we are cited to the case of Perrette v. Kansas City, 162 Mo. 238, wherein it is contended a similar instruction was approved. The instruction in that case was different from the one here in' that the term used was “unsafe and dangerous,” which is the equivalent of not being reasonably safe; for the language imparts more than a mere defective condition.

Bixt plaintiff claims that if said instruction was defective it was cured by those asked and given on the part of the defendant. Instructions numbered six and seven properly "declare the law. In number seven the jury are told that the mere fact that there was a defect or imperfection in the sidewalk where plaintiff claimed to have fallen, was not of itself sufficient to hold defendant liable; and that “unless the alleged defect or imperfection was such that the sidewalk was not on that account reasonably safe for travel in the ordinary modes by persons using ordinary care and prudence, their verdict should be for the defendant.” Although plaintiff’s instruction was faulty, yet if read in connection with that of the defendant the jury would not have been misled. Defendant’s instruction is explanatory, rather than contradictory, of the former. Omissions in a plaintiff’s instruction may be supplied by those given for the defendant. Gordon v. Burris, 153 Mo. 223; Fischer v. Packing Co., 77 Mo. App. 108.

The other objection made to this instruction is “more technical than real.” "We think the instructions as a whole fully and fairly presented the case to the jury.

"Whether the defect in the sidewalk was so obvious as to impart notice to defendant was a question of fact for the jury. There was evidence of its general bad condition at and about the place where plaintiff was injured sufficient to warrant the verdict.

For the reasons given the cause is affirmed.

All concur.