Strange v. City of St. Joseph, 112 Mo. App. 629

112 Mo. App. 629 | Mo. Ct. App. | 1905

ELLISON, J.

The plaintiff fell on one of the defendant’s board sideAvalks and was injured. She brought this action and recovered judgment in the. trial court. It appears that the walk was laid on a street which had been graded by cutting down, which left elevations of earth near and just outside the walk. Rains and melting snow and ice washed dirt down upon the walk and it had been left to accumulate by the city.' In dry weather the earth was no more than a mere obstruction; but in wet weather, whether from rains or melting snow, it would •become mud, shoetop deep, and on account of the nature of the dirt was, at such times, very slippery. The plaintiff fell while attempting to pass over the walk in the month of January when melting snow and ice had converted the obstruction into a slippery mass of mud. A defective or worn board at the place where plaintiff fell caused a greater accumulation of mud. The ends of the boards were laid against the embankment, or so close thereto that there was no way for descending mud to pass from the embankment except over the walk. It was also shown that occassionally, when wet, large masses of earth would fall upon the walk.

We held in Milledge v. Kansas City, 100 Mo. App. 490, in a case not so strong against the municipality as this, that it was a question for the jury whether in such circumstances it was negligence to permit earth to accumulate on the walk so as to become dangerous to pedestrians when it had been turned to mud by rains or melting snow or ice. The case is not one of a mere slippery walk made so by being wet, which cannot be provided against — it is a street allowed to become obstructed with earth so that when wet it became a dangerous place.

Under the evidence in the cause there was no error in plaintiff’s instruction numbered one concerning the city’s notice of the condition of the walk. We do not regard the instruction as assuming that the city had- notice. In view of the evidence on that subject, and-reading the instruction in connection with number two, where the jury are told that defendant’s liability depended upon whether it had knowledge of the defect long enough before the accident to have removed it. The in- ■ structions as a'whole presented the case fairly for each party and they afford no just cause of complaint.

Objection is taken to the notice given by plaintiff to the city, on the ground that it did not describe the place of injury and of a defective jurat attached thereto by the officer before whom plaintiff made oath. We regard the notice as in all respects sufficient for the purpose which the statute intended to accomplish. [Reno v. St. Joseph, 169 Mo. 612; George v. Edelbrock, 97 Mo. App. 63.] The specific objections made seem to be without merit. The place is described as, “a certain sidewalk situated on King Hill avenue on the east side thereof, at a point about the center of M'asschnsetts avenue, if said Masschusetts avenue continued on over and across said King Hill avenue, the place being in front of the residence of Dick Johnson.” The objection to the jurat is much more technical than substantial.

The whole record discloses that we are without authority to interfere, and we accordingly affirm the judgment.

All concur.