Chilton v. City of St. Joseph

• Decision Date: 23 February 1898
• Citation: 44 S.W. 766,143 Mo. 192
• Parties: CHILTON v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

44 S.W. 766

143 Mo. 192

CHILTON v. CITY OF ST. JOSEPH.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS — INJURIES — LIABILITY OF CITY — INSTRUCTIONS — DAMAGES — VERDICT.

1. Where one passes along a sidewalk, which is in a dangerous condition, in an ordinarily prudent manner, and is injured, she can recover therefor against the city, although she knew at the time that the sidewalk was dangerous.

2. A member of a church, injured by the dangerous condition of a sidewalk which ran alongside the premises of the church, is not precluded from suing the city for damages.

3. In an action against a city for personal injuries by reason of a defective sidewalk, an instruction that, in estimating plaintiff's damages, the jury should consider, not only the physical injury, the bodily pain, and mental anguish, but also such damages as will reasonably result from said injuries in the future, was proper.

4. When the injuries consisted of a broken leg, a verdict of $3,333.33 was not excessive.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by Mary Chilton against the city of St. Joseph for personal injuries. There was a verdict for plaintiff, from which defendant appealed. Affirmed.

Casteel & Haynes, for appellant. H. S. Kelly and J. W. Stokes, for respondent.

BRACE, P. J.

This is an action for damages for personal injuries received by the plaintiff from a fall on a defective sidewalk, in which she obtained judgment in the trial court for the sum of $3,333.33, from which judgment the defendant appeals.

It appears from the evidence for the plaintiff that the sidewalk in question, on the west side of Twenty-Seventh, between Olive and Pattee streets, in the city of St. Joseph, was constructed of wooden stringers and boards; that the stringers were laid down about 2 feet 6 inches apart, and the boards, about 4 feet long, were laid across the stringers, the ends extending on each side beyond the stringers from 8 to 10 inches, and being from 6 to 8 inches above the ground; that at the time of the accident, and for some months prior thereto, the stringers were, and had been, in such a decayed condition at places that they would not hold the nails by which the boards were fastened to them; that, in consequence of this condition, some of the boards were loose, and some misplaced, whereby some persons, prior to the accident, had been tripped and had fallen; that on the 13th of October, 1894, the plaintiff and a neighbor, Mrs. Dawson, returning home from the business part of the city, after dark, entered upon this sidewalk, which was the usual and ordinary route and way for that purpose, much used by the traveling public, and sufficiently lighted by electric lights to enable them to see very well, and, while walking thereon side by side, and talking to each other, Mrs. Dawson, being on the outside of the walk, stepped upon that part of one of the loose boards that projected beyond the stringers, causing it to fly up, and both of them to fall, — the plaintiff's foot going down into the hole where the board had been, breaking her leg, on which the board fell with full force. The defendant introduced no evidence. The further evidence for the plaintiff will be noticed as far as is necessary in the course of the opinion.

The errors assigned are: That the court erred in refusing to instruct the jury to return a verdict for the defendant; in giving instructions 1 and 4 for plaintiff; and that the damages are excessive.

The instructions complained of are as follows: "(1) The court instructs the jury that it was the duty of the defendant city to see that the sidewalk in question was constructed of such materials and in such a manner as to make it reasonably safe for travel, and to see that it was kept and maintained in a reasonably safe condition for use and travel thereon in the ordinary modes; and if the jury believe, from the evidence, that the defendant negligently or knowingly permitted said sidewalk to be constructed in an improper, insecure, and defective manner, by using insufficient stringers, and placing the boards across the stringers so that the ends of the boards lapped over the stringers at either side, and that the boards were insecurely nailed, whereby and by reason thereof said sidewalk became and was unsafe and dangerous, and was not reasonably safe for travel thereon, or if the jury believe, from the evidence, that the sidewalk, at the time and place when and where plaintiff claims to have been injured, was out of repair, and unsafe for travel thereon by the ordinary modes, by reason of the stringers being unsound, and the boards being loose or insecurely nailed to said stringers, and that defendant's officers, whose duty it was to keep said sidewalk in repair, knew, or might by the exercise of ordinary care and diligence have known, of its defective and unsafe condition in time to have repaired the same before said alleged injury to plaintiff, and that, while plaintiff was walking along said walk, where it was so defective and out of repair, by the side of Mrs. Dawson, in the exercise of ordinary care herself, she was violently thrown down upon the sidewalk and ground, and injured, by a loose or insecurely nailed board in said walk flying up and out of its place when stepped on by Mrs. Dawson, who was walking in company with plaintiff, then and in such case the jury should find for plaintiff, although the jury may believe, from the evidence, that plaintiff knew the condition of said sidewalk, and that it was out of repair and unsafe." "(4) In estimating plaintiff's damages, if the jury find for her, they will take into consideration, not only the physical injury inflicted, the bodily pain and mental anguish endured and suffered, but may also allow for such...