Loftis v. Kansas City
| Citation | 137 S.W. 993,156 Mo.App. 683 |
| Parties | IDA B. LOFTIS, Respondent, v. KANSAS CITY, Appellant |
| Decision Date | 29 May 1911 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court--Hon. Herman Brumback, Judge.
Judgment affirmed.
John G Park and Francis M. Hayward for appellant.
(1) The court erred in not sustaining the demurrer of defendant to the evidence. Wheat v. St. Louis, 179 Mo. 572; Cohn v. Kansas City, 108 Mo. 387; Kaiser v. St Louis, 185 Mo. 366; Woodson v. Metropolitan, 224 Mo. 685; Knight v. Baltimore, 97 Md. 647; King v. Cohn, 125 Mich. 511; Casey v Malden, 163 Mass. 507. (2) The court erred in refusing instruction E asked by defendant. Coffee v. Carthage, 186 Mo. 573; Jackson v. Kansas City, 106 Mo.App. 52; Woodson v. Railroad, 224 Mo. 685; John v. Ottumwa, 60 Ia. 429; Ryan v. Kansas City, Mo. S.Ct. The court erred because it did not set aside the verdict on account of its excessive character. Johnson v. Railroad, 67 Minn. 260; Collins v. Janesville, 111 Wis. 348; Nichols v. Crystal, 126 Mo. 55.
Boyle & Howell for respondent.
(1) It is the duty of a city to keep its streets in a reasonably safe condition for public travel thereon. It is its duty to discover and remedy defects therein, and it is bound to take notice of defects, and a pedestrian has no duty to examine the street for defects. He has a right to act on the presumption that it is reasonably safe for travel. And evidence that the defective condition has existed for a long time is sufficient to authorize a jury in finding that the city was negligent in not discovering and repairing it. Heberling v. City of Warrensburg, 204 Mo. 604; Coombs v. Kirksville, 134 Mo.App. 645; Howard v. New Madrid, 127 S.W. 631; Grainey v. St. Louis, 141 Mo. 180; Chilton v. St. Joseph, 143 Mo. 192. (2) The court did not err in refusing instruction E, asked by defendant. It was erroneous in that it required the plaintiff to abandon the sidewalk and take another route, and required her to examine the street for defects. It did not require the jury to find that the plaintiff knew the street was dangerous, or the board which broke was defective. Besides, the facts stated were fully presented in other instructions. Herberling v. Warrensburg, 204 Mo. 604; Deland v. City of Cameron, 112 Mo.App. 704; Diamond v. Kansas City, 120 Mo.App. 185; Cytron v. Transit Co., 205 Mo. 692; Waddell v. Railway Co., 213 Mo. 8; Porter v. Stockyards Co., 213 Mo. 372. (3) The damages assessed by the jury were not excessive.
Plaintiff claimed to have been injured on one of defendant's board sidewalks, in a public street, which she charged was negligently permitted to become and remain in a dilapidated and dangerous condition. She recovered judgment in the trial court for $ 3000.
The evidence showed that plaintiff fell over a loose and decayed board in the sidewalk at about noonday. She had not been over the walk before and on this occasion she was preceded a few feet by her son, a lad of about fifteen years. He saw that the boards were loose from the stringers--some at one and others at both ends, and he turned and spoke to plaintiff about the condition of the walk. She, too, had observed its state of repair, but said that she thought she could get along. Just then she attempted to step over a defective board, but stepped onto another of the same character, and "went down." The board she stepped on "looked sound and like it was nailed to the stringers, but it was all rotted out." She stated that she had no idea that she would fall.
That the sidewalk was unsafe and dangerous is practically conceded by defendant, and the chief defense was, that being in that condition and plaintiff knowing it, she was guilty of contributory negligence in attempting to walk over it. The street itself was paved and might have been used by pedestrians.
While there is not uniformity of opinion in the application of the law governing municipalities, as to their duties concerning sidewalks, to a given state of facts, yet the law itself is consistently stated to be that if the defect in the walk is not so patently dangerous that no ordinarily prudent and careful person would attempt to pass over it, such person is not precluded, as a matter of law, from a right of action, if he be hurt in using the walk with ordinary care to avoid injury. Plaintiff has cited us to a number of decisions by the Supreme Court and the Courts of Appeals which bear out this statement of the law. [Heberling v. Warrensburg, 204 Mo. 604, 103 S.W. 36; Chilton v. St. Joseph, 143 Mo. 192, 44 S.W. 766; Perrette v. Kansas City, 162 Mo. 238, 62 S.W. 448; Coffey v. Carthage, 186 Mo. 573, 85 S.W. 532; Combs v. Kirksville, 134 Mo.App. 645, 114 S.W. 1153; Howard v. New Madrid, 148 Mo.App. 57, 127 S.W. 630; Graney v. St. Louis, 141 Mo. 180, 42 S.W. 941.] In the latter case the court, in referring to the trial, said that: "The case seems to have been tried upon the theory that mere knowledge on part of plaintiff as to the condition of the walk was an absolute protection to the city against all accidents resulting to her from such defect, a proposition which, if followed to its logical ending, would make the notorious misconduct of a city in abandoning its streets and walks an absolute shield against its grossest neglect, and the open defiance of its plainest duty an exemption from liability from the consequences thereof."
And the court further said: "Nor can it be said as further contended by defendant that plaintiff was bound to abandon the use of the sidewalk in...
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