Waters v. Kansas City

94 Mo. App. 413 | Mo. Ct. App. | 1902

ELLISON, J.

This action is for personal injuries said to have been sustained by plaintiff by reason of defects in one of defendant’s sidewalks. The verdict and judgment in the trial court was for defendant.

The evidence was short and tended to show a defective street-crossing connecting the sidewalks, in that boards were out of it. It showed also that snow was on the ground, and at the time of the accident was still falling. The snow at least partially concealed the defect in the crossing. Plaintiff was traveling along the walk and in stepping off of the walk on to the crossing stepped into the vacant place made by the absence of the boards. This threw her forward and over crosspieces which threw her to the ground, whereby she broke her arm and was otherwise injured.

The court gave ten instructions for defendant. We regard the objections made by plaintiff to some of them as being well taken. It is evident that the defendant was trying to protect itself from liability for the defective crossing by reason of the snow covering it, and it is clear that an attempt was made to impress the jury with the idea that if the defect was such as it would have been seen and avoided if there had not been snow on it, then defendant was not liable. It would be strange if a city could excuse itself from liability for negligence by so usual an occurrence as an ordinary snow falling on the ground. Snow in this climate is no extraordinary occurrence, and does not afford the slightest excuse for negligence of cities charged with the duty of keeping the streets in repair. The following cases are applicable in principle. Bassett v. City of St. Joseph, 53 Mo. 290; Hull v. Kansas City, 54 Mo. 598; Yocum v. Trenton, 20 Mo. App. 489; Fairgrieve v. Moberly, 29 Mo. App. loc. cit. 156.

Instructions on this head should not have been given, especially No. 8. Instruction No. 5 is erroneous in assuming-that plaintiff “was caused to slip and fall” by reason of snow. There was no evidence that she slipped and fell by reason of the snow, except as it connected with the defect in the walk. The instruction, as worded, would mislead a jury into the belief that she may have fallen on account of slippery snow.

Instructions 8 and 9 are based upon the idea that if the defects were obvious, it was plaintiff’s duty to avoid them, but they assume that the defects were obvious and were, therefore, improper.

The different instructions repeat 'that- defendant should only be required to keep its walks and crossings in reasonably safe condition for ordinary travel in ordinary circumstances, which we may concede,- but it was wrong to have the jury believe that an ordinary snow was something more than an ordinary circumstance and^that it would, therefore, afford an excuse for defendant’s neglect to keep the crossing in proper, reasonable repair.

The judgment is reversed and the cause is remanded.

All concur.