12 S.W. 894 (Mo. 1890), Walker v. City of Kansas
|Citation:||12 S.W. 894, 99 Mo. 647|
|Opinion Judge:||Brace, J.|
|Party Name:||Walker v. The City of Kansas, Appellant|
|Attorney:||R. W. Quarles and W. A. Alderson for appellants. Jewell & Thompson for respondent.|
|Case Date:||February 10, 1890|
|Court:||Supreme Court of Missouri|
Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.
(1) The evidence showed that the bridge from which the respondent fell was only partially defective; that the entire structure was in a good and safe condition, except the west side thereof. On this evidence the appellant asked the court to instruct the jury in the words of the declaration of law heretofore sanctioned and approved by this court, instruction number 1 of appellant, which was refused. The judgment of the lower court must be reversed. Tritz v. City of Kansas, 84 Mo. 632, 642. (2) The second instruction given in behalf of respondent is fatally faulty in several particulars. In telling the jury what it might consider "in determining the question as to the safety of the bridge in question and the necessity for a railing or other guard to said bridge or its abutments, or the necessity of remedying the unevenness in the length of the planks constituting the floor of said bridge," the court declared, as a matter of law, that the bridge had no railing and that the planks constituting the floor were uneven at the ends. The condition of the bridge at the time complained of by respondent is a question of fact, the determination of which was exclusively for the jury. Further, the instruction omits to submit to the jury, upon the question of "the necessity of remedying" the defects in the bridge, which the court declared existed, the question of the extent of the use of the bridge by the public. In this particular it was also erroneous; for, as to the question of the necessity of keeping the bridge in repair, either all or a part of it, the extent of the use thereof by the public is to be considered. This proposition is the same as that concerning the duty of a municipality to keep all of a street or sidewalk in repair. Tritz v. Kansas City, 84 Mo. 632, and cases cited; Staples v. Canton City, 69 Mo. 592.
(1) The court properly refused instruction number 1 of appellant: (a) Because there was no evidence on which to base it. (b) There was no evidence that any part of the bridge was safe. (c) There was no evidence that a part of said bridge was sufficient for travel thereon, or convenient for same. There was no evidence that "only one side" or a part of said bridge was in a dangerous and unsafe condition. (d) The jury found that there was no guard rail...
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