44 S.W. 766 (Mo. 1898), Chilton v. City of St. Joseph

Citation:44 S.W. 766, 143 Mo. 192
Opinion Judge:Brace, P. J.
Party Name:Chilton v. City of St. Joseph, Appellant
Attorney:Casteel & Haynes for appellant. H. S. Kelley and J. W. Stokes for respondent.
Judge Panel:Brace, P. J. Robinson and Williams, JJ., concur. Robinson and Williams, JJ., concur.
Case Date:March 08, 1898
Court:Supreme Court of Missouri
 
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Page 766

44 S.W. 766 (Mo. 1898)

143 Mo. 192

Chilton

v.

City of St. Joseph, Appellant

Supreme Court of Missouri, First Division

March 8, 1898

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

Affirmed.

Casteel & Haynes for appellant.

(1) The court should have sustained defendant's demurrer to the evidence. Plaintiff can not recover in an action for negligence when her own negligence contributed with that of the defendant to produce the injury. Murry v. Railroad, 101 Mo. 236; Kellny v. Railroad, 101 Mo. 67; Weber v. Kansas City Cable Co., 100 Mo. 194; Gleeson v. Excelsior Mfg. Co., 94 Mo. 201; Hudson v. Railroad, 101 Mo. 13; Durkin v. Troy, 61 Barb. 437; Evans v. Utica, 69 N.Y. 166; Wilson v. Charleston, 8 Allen, 137; Belton v. Baxter, 54 N.Y. 245; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Schaeffer v. Sandusky, 33 Ohio St. 246; Buesching v. Gas Light Co., 73 Mo. 219. (2) And if it appears without any conflict of evidence, from plaintiff's own case, or from the cross-examination of her witnesses, that she was guilty of negligence, proximately contributing to produce the injury, it would be the duty of the court to take the case from the jury. Buesching v. Gas Light Co., 73 Mo. 219; Weber v. Kansas City Cable Co., 100 Mo. 194; Hudson v. Railroad, 101 Mo. 13; Hill v. Tionesta Tp., 146 Pa. St. 11; Lynch v. Erie City, 151 Pa. St. 380; Schaeffer v. Sandusky, 33 Ohio St. 246. (3) Where one travels upon a sidewalk that is defective and dangerous and known to be by a party injured thereon, yet entered upon voluntarily and unnecessarily, the party can not be regarded as exercising ordinary prudence, and therefore does so at his own risk. Durkin v. Troy, 61 Barb. 437; Evans v. Utica, 69 N.Y. 166; Wilson v. Charleston, 8 Allen, 137; Belton v. Baxter, 54 N.Y. 245; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Schaeffer v. Sandusky, 33 Ohio St. 246; Weirs v. Jones Co., 86 Iowa 625; Lovenguth v. Bloomington, 71 Ill. 238; Quincy v. Barker, 81 Ill. 300; Centralia v. Krouse, 64 Ill. 19; Wright v. St. Cloud, 54 Minn. 94; Lynch v. Erie City, 151 Pa. St. 380; Hill v. Tionesta, 146 Pa. 11; Forks Tp. v. King, 84 Pa. St. 230; Erie City v. Magill, 101 Pa. St. 616; Wharton on Neg., sec. 400. (4) If a person is injured on his own defective sidewalk, where the law imposed upon him the duty of keeping it in repair, I apprehend there would be no liability on the part of the city simply because it had charge of the streets and was chargeable with their condition. A joint obligation to repair is like concurring negligence. Gleeson v. Excelsior Mfg. Co., 94 Mo. 201; R. S. 1889, sec. 1272. (5) Instruction number 1 nowhere requires plaintiff to have exercised ordinary care while upon the sidewalk, notwithstanding the defense is contributory negligence. The case seems to have been submitted to the jury by this instruction on the theory that if the city was guilty of negligence and plaintiff was injured she could recover. To say the least, it is misleading to a jury. (6) Instruction number 2 assumes that damages will result to plaintiff in the future.

H. S. Kelley and J. W. Stokes for respondent.

(1) We deny that error was committed in submitting the case to the jury on plaintiff's evidence. We contend that when her statements as to the facts or any fact, and not her expressions of opinion, are considered in the light of the physical facts in proof and the other testimony in the case, there is no ground whatever for imputing negligence to her in passing over the sidewalk or in anything she did or omitted to do while upon it. She knew that the sidewalk was out of repair, that some of the boards were out in places and that some of the boards were loose, and the fact of her knowledge was a circumstance to be considered with other facts in determining whether she was guilty of contributory negligence. There being no other fact tending to prove negligence on her part, the court might have refused to submit the question of contributory negligence to the jury. It is true that she says she had passed over the walk frequently and knew that there were boards out and loose boards in the walk, but it was used and walked on by everybody (no one thought of abandoning it) who had occasion to pass from plaintiff's neighborhood to the street car or to the church. Mrs. Chilton should not be blamed or considered negligent in walking over a sidewalk that was so extensively used by everybody -- the best and most prudent people in that part of the city. It does not appear that she did anything or omitted to do anything that an ordinarily prudent person would not have done under the same circumstances. Any other or greater care on her part would have been extraordinary care, and...

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