124 S.W.2d 1194 | Mo. | 1939
This is a proceeding in certiorari to review the opinion of respondents in the case of Anna Bornhoft v. City of Jefferson, published in 118 S.W.2d 93, for conflict with the controlling decisions of this court.
Anna Bornhoft brought suit against the City of Jefferson for damages for personal injuries sustained by her while walking on a sidewalk maintained by the defendant City. She was thrown from her balance and her foot sprained by a step-off or depression in the sidewalk caused by one block or section of the sidewalk being lower than the other. She recovered judgment below which was affirmed by respondents in the opinion before us for review.
Relator had complained of an instruction given for plaintiff and now claims that respondents' ruling on it is in conflict with our decisions. The instruction, No. 4, was as follows: "The Court instructs the jury that if you find and believe from the evidence that plaintiff, while exercising ordinary care for her own safety, was injured while walking along and upon defendant's sidewalk by reason of the defective condition of said sidewalk, if you so find, and that defendant knew or by the exercise of reasonable care could have known of such condition of the sidewalk in time by the exercise of reasonable care to have repaired same prior to January 5, 1937, then you may find the issues for the plaintiff, notwithstanding the fact that she knew beforehand the condition of the sidewalk and had from time to time passed over the sidewalk with safety to herself." In ruling on the instruction respondents said: "The defendant likewise complains of Instruction No. 4 for the plaintiff as erroneous in that it omits the essential requirement to find that the sidewalk in question was not maintained in a reasonably safe condition and permits a verdict for the plaintiff if the jury should find only that the sidewalk was defective. *61
"Instruction No. 4, like Instruction No. 1 for the plaintiff, purports to cover the whole case and to direct a verdict for the plaintiff. The instruction standing alone is subject to the complaint made by the defendant. It is at least indefinite, ambiguous, and misleading. It is not sufficient to require that the sidewalk be found defective, but it must have been found that the sidewalk was not in a reasonably safe condition. The instruction authorized a finding based upon a defect, whether one of a dangerous nature or one of a slight nature. It should have been so drawn as to permit a recovery only upon a defect of a dangerous character and one rendering the sidewalk not reasonably safe and have excluded a defect of a trivial or slight nature. [Robertson v. Wabash Ry. Co.,
"It is insisted by the plaintiff, however, that Instruction No. 4 is to be read in connection with the plaintiff's Instruction No. 1 and the defendant's Instruction D and that, when so read, the omission therefrom is supplied."
After quoting from the case of Jenkins v. Missouri State Life Insurance Co.,
"In State ex rel. St. Joseph Belt Ry. Co. v. Shain et al. (Mo.),
"Instruction No. 4, under the rules noted from the above opinions, is not to be regarded as setting forth a misdirection but merely as being indefinite, ambiguous, too general, insufficient in direction, and misleading and, standing alone, as erroneous; and the errors therein are to be considered cured by Instructions 1 and D, which are definite and certain in their terms and directions; and it is to be considered that, when all three are read together, the law of the case is sufficiently stated. The error in Instruction No. 4 is therefore not reversible. While not fully adopting the directions and requirements *62 of Instructions 1 and D, it does not negative them and may be regarded as harmonizing with such requirements. It is not contradictory of such instructions or subject to the charge of a positive misdirection. The defendant's contentions with respect to such instruction are ruled against it."
[1] It will be seen that the effect of the above ruling, that the giving of Instruction No. 4 was not reversible error, is that (1) the instruction which purports to cover the whole case and to direct a verdict for the plaintiff authorized a finding based on a mere defect in the sidewalk whether dangerous or not; (2) that this instruction is not to be regarded as a misdirection (3) but is to be regarded only as being indefinite, ambiguous, insufficient and misleading (4) and is cured when read in connection with another of plaintiff's instructions and (5) with one of defendants' instructions. We find that respondents' opinion conflicts with our decisions in all the above respects.
In Taylor v. Kansas City,
While the opinion of respondents declares that the instruction "should have been so drawn as to permit a recovery only upon a defect of a dangerous character and one rendering the sidewalk not reasonably safe and have excluded a defect of a trivial or slight nature," yet it rules that this instruction which permits recovery for merely a defective condition is only "too general, insufficient in direction and misleading."
It is important in this case to keep in mind the fact that the sidewalk was defective was undisputed. The opinion states that the evidence showed that from all the testimony about the depth of the step-off there was a range of from one and one-half to four inches. That the defect was undisputed is an additional reason which demonstrates that an instruction which requires the jury only to find that the sidewalk was defective, was positive misdirection.
In the case of State ex rel. St. Joseph Belt Railway Company v. Shain et al.,
[2] We are not bound by respondents' conclusion that the instruction is not a misdirection. In a review for conflict we are bound by the Court of Appeals' conclusion concerning what the facts in the case were, but not by its conclusion reached by applying the law to the facts where we have reached a different conclusion in applying the law to a similar state of facts. [State ex rel. Golloday v. Shain,
Respondents have ruled that the instruction in question purports to cover the whole case and to direct a verdict for the plaintiff and that it has omitted the necessary element that the defect was not reasonably safe which would have fixed defendant's liability for negligence but such omission may be cured when read with an instruction of defendant.
[3] We find a similar state of facts in State ex rel. Long v. Ellison,
In the case of Biermann v. City of St. Louis,
The respondents have also ruled that the instruction complained of may be read in conjunction with another of plaintiff's instructions and by so doing the omission would be thereby remedied. However, we have held otherwise in Hall v. Manufacturers' Coal Coke Co., supra. That case was an action for damages for personal injuries to a miner caused by the fall of a part of a roof. The question was whether the assurance made to the plaintiff by the defendant that the roof was safe constituted negligence. This court held that an instruction was error which undertook to cover the whole case but did not require the jury to find if the assurance was negligent and that this error was not cured by another of plaintiff's instructions which undertook to set forth what facts would constitute negligence in making the assurance relied on. In view of this decision, we hold the ruling of respondents, permitting the instruction complained of to be cured by another of plaintiff's instructions, to be in conflict.
Respondents state that the instruction is indefinite and ambiguous and therefore comes under the rule in the case of Jenkins v. Missouri State Life Ins. Co.,
[4] It is argued on behalf of the respondents that by the use of the words "the defective condition" in the instruction under examination, the instruction referred to such condition as was described in another of plaintiff's instructions and that the use of the definite article "the" clearly demonstrate this. We have held in Macklin v. Fogel Construction Co.,
[5] It is also argued that the instruction merely authorized a verdict, it did not direct one. We said in the St. Joseph Belt Ry. Co. v. Shain et al., case, supra, that it "and many others cited by both relator and respondents, stress instructions that omit an essential element and authorize a verdict. Where an instruction does that, all the cases say that the error is incurable." This is quoted in respondents' opinion. There seems to be no distinction drawn in this regard, nor do we discern any, between instructions which direct a verdict and those that authorize one.
For reasons we have stated so much of the opinion as rules that the giving of Instruction No. 4 was not reversible error and any order based thereon should be quashed. It is so ordered. All concur. *66