Reno v. City of St. Joseph

Citation169 Mo. 642,70 S.W. 123
PartiesRENO v. CITY OF ST. JOSEPH.
Decision Date27 October 1902
CourtUnited States State Supreme Court of Missouri

2. Under Rev. St. 1899, § 5724, requiring, in case of injury from a defective sidewalk, notice to the city, stating the character and circumstances of the injury, a statement: "I slipped and fell, and was permanently injured. Said accident occurred by reason of snow and ice being allowed to accumulate and remain on said sidewalk. Said injuries consist of wounds and bruises of the sciatic nerve of my left hip and thigh," — sufficiently stated the facts, not only in relation to the sidewalk, but also as to injuries, though an enlargement of the bones of the hip was caused.

3. There is no error in admission of evidence; it having been admitted without objection, and ruled out on motion.

4. An instruction authorizing recovery if snow and ice had accumulated on the sidewalk, and a ridge had formed in the center thereof, which sloped on either side, making it dangerous and unsafe for pedestrians to travel on, and plaintiff, stepping on the ridge, slipped and fell, and was thereby injured, substantially embraces the fact that she was injured by reason of the unsafe and dangerous condition of the sidewalk.

Appeal from circuit court, Buchanan county; W. K. James, Judge.

Action by Mary J. Reno against the city of St. Joseph. Judgment for plaintiff. Defendant appeals. Affirmed.

Kendall B. Randolph, for appellant. Dickson & Dickson, Wilson & Watkins, and H. S. Kelley, for respondent.

BURGESS, J.

This is an action for damages alleged to have been sustained by plaintiff on the 30th day of January, 1898, by slipping and falling on the sidewalk on Eighteenth street in defendant city. At the time of the accident the snow and ice had accumulated on the sidewalk, and the people, in walking over it, had tramped the snow down in the middle of the walk so that a ridge was formed from 3 to 6 inches high, and from 1 foot to 18 inches wide, and sloping from the center toward the edges or sides of the ridge, and the thawing and freezing made the ridge of snow and ice slippery, rough, and uneven. It had been in that condition for about 30 days, — all through the month of January. On that day the plaintiff and her daughter, Minnie Reno, and her neighbor, Mrs. Moran, and her daughter, May Moran, passed down and over said street. As they returned home they walked upon the sidewalk in question. They were traveling along in single file, one after another; the plaintiff in the rear, following along after or behind the others, who led the way. They had traveled some blocks on the sidewalk, and experienced no difficulty before they came to the walk where plaintiff fell; but when they came to this particular piece of sidewalk, going north, the plaintiff, in attempting to pass over it, stepped on the ridge of snow and ice, and slipped and fell down, — her feet going out towards the east side of the walk, and her head toward the west, striking her hip and thigh on the ridge across which she fell, — and thereby received the injuries to the sciatic nerve complained of, disabling and crippling her for life. She was picked up and carried home, and was confined to her bed several weeks, suffering excruciating pain by reason of the injury to the sciatic nerve. The accident happened on the 30th day of January, 1898. The plaintiff served a notice upon the mayor on the 29th day of March, 1898, within 60 days of the occurrence; stating the time when and the place where the injury occurred, and the character and circumstances of the injury, and that she would claim damages from the city for said injuries. This notice was in writing, and verified by the plaintiff's affidavit.

At the conclusion of plaintiff's evidence, the defendant asked the court to instruct the jury as follows: "The court instructs the jury that, under the pleadings and evidence in this case, the plaintiff cannot recover, and your verdict will be for the defendant." The court refused said instruction, to which action of the court defendant then and there at the time excepted.

After all of the evidence was in, the court, on behalf of the plaintiff, instructed the jury as follows: "(1) The court instructs the jury that it was the duty of the city defendant to keep its sidewalk in reasonably safe condition for travel thereon in the ordinary modes by day or by night, and if the jury believes from a preponderance of the evidence that by reason of the accumulation of snow and ice and the formation of a ridge or rough and uneven surface on the sidewalk, of snow and ice, at the time and place where plaintiff claims to have been injured, on the west side of North Eighteenth street, in front of house No. 1008, in the city of St. Joseph, the said sidewalk had become and was in an unsafe condition for travel thereon by day or night, and that defendant's corporate authorities knew, or might by the exercise of ordinary care and diligence have known, of the unsafe condition thereof in a reasonable time to have removed said snow and ice and repair said walk before the alleged injury of the plaintiff, and that, while plaintiff was walking on said sidewalk where it was so defective and unsafe, she slipped and fell down upon the sidewalk without fault or want of ordinary care on her part, and she was thereby injured, then the jury must find for the plaintiff, although the jury may further believe from the evidence that plaintiff knew of the alleged defect in said sidewalk, or condition thereof. (2) The court instructs the jury that if they believe from the evidence that snow had fallen upon the sidewalk, and persons traveling on said sidewalk packed it down so that it formed a ridge or rough and uneven surface on the sidewalk, and in consequence thereof said sidewalk was not reasonably safe for travel thereon in the ordinary modes, then it was out of repair and defective, within the meaning of the instructions in this case; and if said defective condition of the sidewalk had existed for such length of time prior to the alleged injury of plaintiff that the corporate authorities of the city could and ought to have known its condition, in the exercise of ordinary care and diligence, in a reasonable time to have repaired the same by removing said ice and ridge before the alleged injury to plaintiff, and failed to do so, then the city was negligent, and is responsible in damages for any injury that may have been caused to plaintiff by reason thereof, provided plaintiff was in the exercise of ordinary care herself. (3) The jury are instructed that if they believe from the evidence that the sidewalk in question was unsafe by reason of the accumulation of snow and ice on said sidewalk, as mentioned in other instructions herein, at the time and place when and where plaintiff claims to have been injured, and that it had been so unsafe for such length of time as, by reasonable diligence and care in the performance of their duties, its condition ought to have been known by the corporate authorities in a reasonable time to have removed the said snow and ice therefrom before said alleged injury to plaintiff, then notice to defendant of its condition will be presumed, and proof of actual knowledge thereof upon the part of said corporate authorities will not be necessary; and, if said sidewalk were permitted to be and remain unsafe under such circumstances, then the said corporate authorities were negligent, and the defendant city is responsible for said negligence. (4) Unless the jury believe from all the evidence, facts, and circumstances in proof that plaintiff was guilty of some act of negligence which an ordinarily prudent person would not have done under similar circumstances in the use of said sidewalk, which contributed proximately toward causing said injury to plaintiff, the jury should not find against the plaintiff on the ground of contributory negligence set up in the defendant's answer; and, although plaintiff may have known the condition of sidewalk, the law did not require of her the exercise of extraordinary care in passing and traveling on said walk, but only that she exercised such care and prudence as an ordinarily prudent person would have exercised under like circumstances. (5) The jury are instructed that they are the judges of the evidence and credibility of the witnesses, and may give to the testimony of any witness such weight as they may deem it entitled to under all the facts and circumstances in proof; and in determining what weight they will give to the testimony of any witness, and in reconciling the conflicting testimony, if there be any, the jury are not confined alone to the statements of the witnesses, but may take into consideration their own experience and observations in the common affairs of life. (6) If the jury find for the plaintiff, they will assess her damages at such sum as they believe from the evidence will compensate her for the injuries sustained by her as shown by the evidence, if any; and in estimating such damages the jury will take into consideration not only the physical injury inflicted, the bodily pain and mental anguish endured and suffered, if any, and her inability by reason of said injuries to perform her ordinary avocations of life, but may also allow for such damages as it appears from the evidence as to the nature and extent of her injuries will reasonably result to her therefrom in the future, not to exceed in all the sum of ten thousand dollars."

To which action of the court in giving said instructions on behalf of the plaintiff, Nos. 1 to 6 inclusive (except as to instruction No. 5), and each of them, de...

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