20 Mo.App. 489 (Mo.App. 1886), Yocum v. Town of Trenton

Citation:20 Mo.App. 489
Opinion Judge:PHILIPS, P. J.
Party Name:CLARA YOCUM, BY NEXT FRIEND, Respondent, v. TOWN OF TRENTON, Appellant.
Attorney:J. H. SHANKLIN, T. A. WITTEN, and A. G. KNIGHT, for the appellant. E. M. HARBER and GEO. HALL, for the respondent. I. The matter of error most pressed upon our attention by appellant is the following instruction given by the court on behalf of plaintiff: Among other instructions given for the def...
Case Date:February 08, 1886
Court:Court of Appeals of Missouri
 
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Page 489

20 Mo.App. 489 (Mo.App. 1886)

CLARA YOCUM, BY NEXT FRIEND, Respondent,

v.

TOWN OF TRENTON, Appellant.

Court of Appeals of Missouri, Kansas City.

February 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....

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