14 S.W. 630 (Mo. 1890), Maus v. City of Springfield

Citation:14 S.W. 630, 101 Mo. 613
Opinion Judge:Barclay, J.
Party Name:Maus, Appellant, v. The City of Springfield
Attorney:Geo. S. Rathburn for appellant. Goode & Cravens for respondent.
Case Date:November 17, 1890
Court:Supreme Court of Missouri
 
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Page 630

14 S.W. 630 (Mo. 1890)

101 Mo. 613

Maus, Appellant,

v.

The City of Springfield

Supreme Court of Missouri

November 17, 1890

Appeal from Greene Circuit Court. -- Hon. W. D. Hubbard, Judge.

This is an action for personal injuries sustained by plaintiff by reason of the alleged negligence of defendant, the city of Springfield, in permitting one of its street crossings to remain in a dangerous and unsafe condition, after due notice thereof.

The pleadings need not be specially noted. They raise the issues of negligence on the part of defendant, with regard to the condition of the street-crossing, and of the contributory negligence of plaintiff.

At the trial plaintiff was obliged to take a nonsuit with leave in consequence of the court's ruling that he could not recover. The court afterwards refused to take off the nonsuit whereupon plaintiff appealed, after the usual preliminaries.

For the purposes of this hearing the following is a sufficient outline of the evidence submitted by the plaintiff.

The alleged defect in the street was upon the cross-walk, in prolongation of the sidewalk on Phelps avenue (a much frequented thoroughfare) at the intersection of Benton avenue. It consisted of a gap some twelve or fifteen inches deep and two feet wide, extending across the usual traveled footway at that point. On one side of this gap was a stone slanting downward toward it for some four or five inches at an angle of about twenty-two degrees. The opening had formerly been covered by a large flat stone but it had not been there for at least three months before this accident. Plaintiff had been over the crossing often and had observed its condition.

The injury occurred one dark and cloudy night in December, while plaintiff was passing that way along the crossing on an errand of business. He missed his footing in attempting to step across the gap from the slanting stone to that opposite, fell into the mud and against a fire plug, breaking some ribs and sustaining other injuries.

It appeared that plaintiff had one hand in his pocket when he fell, and that he might have gone to his destination by another route.

Reversed and remanded.

Geo. S. Rathburn for appellant.

(1) The court erred in taking the case from the jury. The question of contributory negligence is a question for the jury. Fink v. Furnace Co., 10 Mo.App. 61; Brennen v. City of St. Louis, 92 Mo. 482. It is usurpation for the trial court to take such an issue from the jury. Cook v. Railroad, 19 Mo.App. 329; Petty v. Railroad, 88 Mo. 306; Drain v. Railroad, 86 Mo. 574; Tabler v. Railroad, 93 Mo. 79; Norton v. Ittner, 56 Mo. 351. (2) The fact that Maus knew of the defect in the crossing is not conclusive evidence of negligence on his part. It is only necessary for him to prove ordinary care to avoid the accident, and he is not obliged to abandon a convenient route of travel on account of it. Buesching v. Gaslight Co., 73 Mo. 219, and cases cited, and 77 Mo. 431; Russell v. Columbia, 74 Mo. 480. (3) The traveler is not required to abandon an accustomed way of travel in a city because of dangerous excavations. He is only required under such circumstances to use ordinary care. Smith v. St. Joseph, 46 Mo. 449; Thompson on Negligence, pp. 1203, et seq.; Loewer v. City of Sedalia, 77 Mo. 431. Whether plaintiff was guilty of contributory negligence was a question for the jury. 77 Mo. 431. (4) The third instruction given for plaintiff in Loewer v. Sedalia, 77 Mo. 431, correctly declared the law of this case. See, also, Stephens v. Macon, 83 Mo....

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