62 S.W. 448 (Mo. 1901), Perrette v. Kansas City

Citation:62 S.W. 448, 162 Mo. 238
Opinion Judge:BURGESS, J.
Party Name:PERRETTE v. KANSAS CITY, Appellant
Attorney:R. B. Middlebrook for appellant. Ward & Hadley and Gilmore & Brown for respondent.
Judge Panel:BURGESS, J. Sherwood, P. J., and Gantt, J., concur. Sherwood P. J., and Gantt, J., concur.
Case Date:April 23, 1901
Court:Supreme Court of Missouri
 
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Page 448

62 S.W. 448 (Mo. 1901)

162 Mo. 238

PERRETTE

v.

KANSAS CITY, Appellant

Supreme Court of Missouri, Second Division

April 23, 1901

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

R. B. Middlebrook for appellant.

(1) Instruction 1, given by the court at the instance of the plaintiff, in view of the plaintiff's testimony, is erroneous. In its present form, it enables the plaintiff to avail himself of a presumption contrary to what he swears he knew. Nixon v. Railroad, 141 Mo. 439; Brannock v. Elmore, 144 Mo. 65; Roddy v. Railroad, 104 Mo. 150. (2) The court erred in refusing to give instruction 6, offered by the defendant. Spillane v. Railroad, 135 Mo. 427; Henderson v. Railroad, 61 N.Y. 900; Murray v. Railroad, 101 Mo. 236; Kelley v. Railroad, 101 Mo. 67; Packet Co. v. Vandergrift, 34 Mo. 55; Callahan v. Warne, 40 Mo. 131; Corcoran v. Railroad, 105 Mo. 399; Dougherty v. Railroad, 97 Mo. 647; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 371. (3) The court erred in sustaining the objection of plaintiff's counsel to the question, "I will ask you if the habit of drinking constantly has a tendency to decrease the expectancy," asked by defendant of the plaintiff's witness Park. The plaintiff had testified that he was in the habit of drinking regularly, but not to excess, and the question of the city's counsel was certainly relevant, and the objection to the question ought not to have been sustained by the court. (4) The court erred in giving instruction 4 on behalf of the plaintiff, by means of which instruction the defendant was precluded from utilizing in any way the knowledge of the plaintiff acquired by him before the inquiry, that the sidewalk at the place in question was "in pretty bad shape all the time." Cohn v. Kansas City, 108 Mo. 392. (5) If the defect complained of by the plaintiff was so extremely latent as the witnesses for plaintiff testified it was, then the city was not liable under the law, as settled by this court. In any event, the court should have given instruction 7, asked by defendant. Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317.

Ward & Hadley and Gilmore & Brown for respondent.

(1) The theory of the plaintiff's case was that on the west side of the water plug in the sidewalk in front of the Hageman flats was a piece of one of the boards of the walk extending from the western edge of the walk up to an inch or two of the plug; that this piece rested loose and unnailed on the outside or western stringer of the walk so that it would give way or tip down when stepped upon between the plug and the stringer; that this condition was one not apparent on a casual observation such as one walking along the walk would make, presenting when the board was in place "an appearance of security;" that plaintiff did not know that the board west of the plug was loose, but from such observation as he had made "it was all right as it appeared;" that when he was walking along the sidewalk on the afternoon of August 26, he stepped upon this loose board between the water plug and the outside stringer; that the board went down with him and he was injured, as claimed in his petition. The theory of the defense was that the plaintiff was not injured at the place claimed in the plaintiff's petition, and in fact was not injured on Holly street, and that the defect claimed in the petition, viz., the loose board west of the plug, did not exist on August 26, or at any time prior thereto. These were the two questions of fact submitted to the jury by the evidence of the defendant and the argument of counsel. Both of these questions were decided adversely to appellant by the jury. Skinner v. Stifel, 55 Mo.App. 9; Culverson v. City of Maryville, 67 Mo.App. 343; Roe v. Kansas City, 100 Mo. 190; Franke v. St. Louis, 110 Mo. 516. (2) Assuming, for the purpose of argument, that respondent knew of the particular defect complained of, such knowledge has, by an unbroken line of authorities in the State, been held to constitute no bar to an action based upon an injury caused by such defect. Maus v. Springfield, 101 Mo. 613; Gerdes v. Arch Co., 124 Mo. 347; Chilton v. St. Joseph, 143 Mo. 192. (3) Instruction 4, on behalf of respondent, has been frequently approved by this court, and is a correct declaration of the law. Maus v. Springfield, supra; Flynn v. Neosho, 114 Mo. 567; Chilton v. St. Joseph, supra; Culverson v. Maryville, 67 Mo.App. 343. An insignificant verbal inaccuracy as to "the care of a person ordinarily careful," as distinguished from the "care of a prudent person ordinarily careful," was fully cured by appellant's most favorable instructions 4 and 5 on contributory negligence and the obligations therein set forth, placing upon respondent the obligation to exercise ordinary care and prudence and such care and caution as an ordinarily prudent person under the circumstances would have exercised. Deweese v. Meramec Iron Min. Co., 128 Mo. 423; Dickson v. Railroad, 104 Mo. 491; Shortel v. St. Joseph, 104 Mo. 114; Harrington v. Sedalia, 98 Mo. 583. (4) Appellant complains because its instruction number 7 was not given. This instruction was misleading and erroneous, because it told the jury that if the condition of the sidewalk would not be observed by the city authorities in the exercise of ordinary care, then the plaintiff could not recover. Observation is not inspection. It is the duty of city authorities charged with the inspection of sidewalks to use ordinary care in their inspection, not simply to observe them as might an ordinary pedestrian. Barr v. Kansas City, 105 Mo. 550; Carrington v. St. Louis, 89 Mo. 208; Squires v. Chillicothe, 89 Mo. 226.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

[162 Mo. 242] BURGESS, J.

This is an action by plaintiff for ten thousand dollars damages for personal injuries sustained by him by reason of the alleged negligence of defendant in failing to keep its sidewalk in front of 1809 Holly street, in said city, in a reasonably safe condition for pedestrians, in consequence of which he caught his foot in a hole therein, and was injured.

[162 Mo. 243] The injury occurred...

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