Yocum v. Town of Trenton

• Decision Date: 08 February 1886
• Citation: 20 Mo.App. 489
• Parties: CLARA YOCUM, BY NEXT FRIEND, Respondent, v. TOWN OF TRENTON, Appellant.
• Court: Missouri Court of Appeals

20 Mo.App. 489

CLARA YOCUM, BY NEXT FRIEND, Respondent,

v.TOWN OF TRENTON, Appellant.

Kansas City Court of Appeals, Missouri.

Feb. 8, 1886.

APPEAL from Grundy Circuit Court, HON. G. D. BURGESS, Judge.

Affirmed.

The case is stated in the opinion.

J. H. SHANKLIN, T. A. WITTEN, and A. G. KNIGHT, for the appellant.

I. Before defendant can be held guilty of negligence on account of defects in the sidewalk (not arising from their original construction), either express notice of the existence of the defect must be brought home to it, or it must be so notorious as to be observable by all. Donlin v. City of Clinton, 13 Iowa 399; Mayor, etc., N. Y. v. Sheffield, 4 Wall. (U. S.) 189; Howe v. Plainfield, 41 N. H. 135; Bradwell v. Jamaica, 15 Vt. 438; Manchester v. Hartford, 30 Conn. 118; Dewy v. Detroit, 15 Mich. 307; Goodnough v. Oshkosh, 24 Wis. 549; Wharton on Neg., sect. 962; Bonine v. City of Richmond, 75 Mo. 437; Russell v. Columbia, 74 Mo. 480.

II. The second instruction given for plaintiff, aside from the erroneous doctrine announced by it, is calculated to mislead the jury. The expression “for a long space of time” has no definite meaning. When the instructions in a case are so contradictory that it is impossible to say on what ground the verdict of the jury was based, if any of them are inconsistent, the judgment should be reversed. Staples v. Town of Canton, 69 Mo. 592.

III. While the intervening negligence of the man who caused the little girl to trip and fall is not pleaded, as a defence, it is submitted that no such plea is necessary. If the proof shows that there would have been no injury but for the intervening negligence of a third party, it would seem that such showing would defeat recovery. Wharton on Neg., sect. 999, and cases there cited.

E. M. HARBER and GEO. HALL, for the respondent.

I. The instructions must all be considered together, and if, as a whole, they are correct, the court will not reverse the case, even though one or more are, in themselves, faulty.

II. As a general rule, a municipal corporation is not answerable for damages caused by a defective condition of its highway, unless: (1) Such defect has been produced by its own act. (2) Unless it has received actual notice of such defect, and a reasonable time had elapsed before the accident happened to enable it to repair the same, by the exercise of ordinary diligence. (3) Unless such time had elapsed between the happening of the defect and the accident, that the corporation might, by the exercise of reasonable diligence, have discovered the defect and repaired it. Cent. Law Journal, Feb. 28, 1885; article by Judge S. D. Thompson. The facts should be submitted to the jury under the instructions. Rockford v. Hilderbrand, 61 Ill. 155; Galesburg v. Higby, 61 Ill. 287; Springfield v. Doyle, 76 Ill. 202.

III. Where the defect has been shown to have existed for an unreasonable length of time, the courts have held as matter of law that the municipality had notice of the defect, and was liable therefor. Cases in paragraph II, supra; Smith v. St. Joseph, 45 Mo. 449; Market v. St. Louis, 56 Mo. 189; Rice v. Des Moines, 40 Iowa, 641; Bonine v. City of Richmond, 75 Mo. 437; Harman v. Boston, 114 Mass. 241; Hume v. New York, 74 N. Y. 264; McLaughlin v. Carey, 77 Pa. St. 109; Holt v. Penobscot, 56 Maine, 15; Rowe v. Portsmouth, 56 N. H. 291; Wharton on Neg., sect. 863; 2 Dillon on Mun. Corp. (2 Ed.) sect. 790; Ibid (3 Ed.) sects. 148, 149.

IV. The doctrine of intervening negligence cited, is not applicable here, as a different rule prevails in Missouri and several other states. Ring v. City of Cahs,77 N. Y. 83; Hall v. Kansas City, 54 Mo. 598, and cases cited; 1 Suth. on Dam. 68.

V. The instructions of defendant were properly refused, because there was no evidence to support them.

PHILIPS, P. J.

This is an action to recover damages against the defendant, a municipal corporation, for injuries sustained by the plaintiff on account of a defective sidewalk. The evidence, in so far as it is pertinent to the questions to be determined, showed that the plaintiff, a girl aged eleven years, was passing along one of defendant's sidewalks, on a frequented street and pass-way, and at a point where there were two or more planks loose, she was met, or overtaken, by a gentleman, walking quite fast, who stepped on the end of one of the loose planks, in passing plaintiff, whereby it flew up, and threw her violently to the sidewalk, by reason of which she was grievously injured, and permanently crippled, as the evidence tended to show. This defect in the sidewalk had existed for a month or more previous to this injury. The plaintiff recovered judgment for $1,600, and the defendant has appealed.

I. The matter of error most pressed upon our attention by appellant is the following instruction given by the court on behalf of plaintiff:

“2. In order for plaintiff to recover in this case it is not at all necessary that she should show that defendant, or its agents or officers had actual knowledge or notice of the defect in, or dangerous condition of said sidewalk, if it was defective or dangerous; but if said sidewalk, at said point where plaintiff alleges she received her injuries, had been out of repair, and in an unsafe or dangerous condition for a long space of time prior to plaintiff's so receiving the injuries complained of, then the law presumes the defendant had knowledge and knew thereof.”

The criticism is, that it asserts the law will presume notice to the defendant of the existence of the defect in the sidewalk, from the fact of its having been long out of repair, and in an unsafe and dangerous condition “for a long space of time prior to the injury.”

There is no question of the rule of law, that in order to fix upon the defendant a liability for such injury, it must have had actual notice of the defect, with reasonable time thereafter to make the needed repair, or the defect must have been of such an obvious or notorious character, or have existed for such a length of time, that the law will raise the presumption that defendant either knew of it, or might have known of it, by the exercise of that care and diligence due from its servants to the public in supervising and inspecting its streets and sidewalks. It is well settled that if such defect be obvious and notorious, the law will, after a reasonable lapse of time, presume that the municipal authorities knew of it. Lindholm v. St. Paul, 19 Minn. 245; 2 Thomp. on Neg. 763, and cases cited. This same author asserts, on same page, that: “notice will be inferred if the defect in the street or sidewalk had existed for a considerable length of time.” And the text seems to be supported by the following adjudications: City of Rockford v. Hilderbrand, 61 Ill. 155; City of Galesburg v. Higby, Id. 287; City of Springfield v. Doyle, 76 Ill. 202; Harriman v. Boston, 114 Mass. 245; Bill v. City of Norwich, 39 Conn. 225. In Dewy v. City of Detroit (15 Mich. 307), the court held that in a city of the magnitude of Detroit the defect in the street should be so open and notorious, or of so long standing as to naturally arrest the attention of passers over it. This would seem to recognize a most reasonable distinction as to cities of such vast territory that its officers and servants charged with the care of its highways could not reasonably be expected to have notice of defects in every part of its domain requiring minute inspection to discover them.

Without affirming the correctness, as an abstract proposition of the instruction under review, it should be treated with a regard to the attending circumstances, the facts in evidence, and the other instructions given by the court. The defendant is an ordinary municipal town. No pretense was made at the trial that its dimensions entitled it to any exemption from the rule based on its presumed opportunities for discovering readily the condition of its highways. This sidewalk was badly out of repair. The defect was obvious, for it was noticed by many passers. A citizen had been struck prior to this injury, by one of these planks flying up when stepped upon. The plaintiff, young as she was, had noticed the bad condition of this sidewalk. It had been out of repair for a month or so. It was on a street much frequented. The least vigilance, commensurate with public duty, would have enabled defendant to discover this defect. It was a dangerous place, as the result to this plaintiff attests. While such corporations are not made by law the absolute insurers of the limbs and safety of those who pass over its highways, yet, in view of the large powers committed to their hands, and the danger to limb and life of those who must use its thoroughfares, they should not be indulged by the courts in acts of negligence, but should be held to rigid accountability for their important public trust.

In Market v. City of St. Louis (56 Mo. 190), the defect had existed for about two months. The court say: ...