Norton v. Kramer

• Decision Date: 17 March 1904
• Citation: 79 S.W. 699,180 Mo. 536
• Parties: NORTON v. KRAMER et al.; CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

79 S.W. 699

180 Mo. 536

NORTON v. KRAMER et al.; CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from St. Louis City Circuit Court -- Hon. W. B. Douglas Judge.

Affirmed.

Chas W. Bates and Benjamin H. Charles for appellant.

(1) The only evidence admissible as to the alleged defective condition of the sidewalk was as to its condition at the time of the alleged accident. Alcorn v. Railroad, 108 Mo 90; Hipsley v. Railroad, 88 Mo. 354; Bowles v. Kansas City, 51 Mo.App. 419; Colyer v. Railroad, 93 Mo.App. 152. (a) Evidence of any defect existing in the sidewalk at any time subsequent to the happening of the injury alleged was improperly admitted. (b) Evidence of defective conditions existing before the alleged injury is admissible only when it establishes the permanent and continued existence of the same. 1 Greenleaf on Evidence (16 Ed.), sec. 14. (c) Where conditions are continually changing, as by the progress of building operations on a house in process of construction, with building materials and implements scattered about, evidence of conditions which existed days or months in advance is not admissible. Shifting conditions furnish evidence of no facts whatever. (2) The plaintiff's instructions were all based on the theory of a permanent condition, an unchanged defect, continued for some time; whereas, the evidence on plaintiff's part shows a shifting and constantly changing condition, during a momentary or temporary phase of which the plaintiff was injured. An abstract proposition, not applicable to the evidence, is error. The evidence shows that the walk was cleared and swept at the close of the day's work; but plaintiff's instructions failed to cover this evidence. (3) The city is not an insurer of the safe condition of its sidewalks. Baustian v. Young, 152 Mo. 325; Nixon v. Railroad, 141 Mo. 437; Carvin v. St. Louis, 151 Mo. 345. (a) And an instruction which in effect states a rule which may be so understood by the jury is error. (b) It is not the duty of the city "to keep the sidewalk in repair." Nixon v. Railroad, 141 Mo. 437. (c) Its duty is only to use reasonable care to keep its sidewalks in a reasonably safe condition for travel for those exercising ordinary care in passing thereover. Baustian v. Young, 152 Mo. 325; Nixon v. Railroad, 141 Mo. 437.

Peers & Peers for respondent.

(1) While it is true that the evidence must show the defective condition of the sidewalk at the time of the accident, yet it is also true that the defective condition must be shown to have existed prior to the accident for such a length of time as to indicate that the city would have known it if it had used proper care in observing the condition of its streets. We regard this as well settled in this State. Baustian v. Young, 152 Mo. 325; Carrington v. St. Louis, 89 F. 208; Frank v. St. Louis, 110 Mo. 516; Rusher v. City of Aurora, 71 Mo.App. 418. The defect in the sidewalk where the plaintiff was injured was not a latent one, but obvious and notorious, and had existed from some time in September, before the accident, up to and even after the night of the 13th of October, when the accident occurred. Surely the appellant had sufficient time, and by the exercise of reasonable diligence could have known of the defective condition of the walk at that point, and, for practical purposes, the opportunity of knowing in such cases must stand for actual knowledge, and therefore, when open defects in a sidewalk have existed for a considerable time, notice of this is implied, and is imputed to those whose duty it is to repair them; in other words, they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. How is the defective condition, so as to impute knowledge, to be shown except by evidence? The evidence as to the continued defective condition of the sidewalk prior to the accident was properly referred to the jury under instruction 2, given on the part of plaintiff. (2) The proposition that a city is not required to keep the entire width of a sidewalk in repair, is not sound. It was intimated in Tratz v. Kansas City, 84 Mo. 632, but this was expressly overruled by this court in Walker v. City of Kansas, 99 Mo. 650. (3) The defendant's instruction in the nature of a demurrer was properly refused.

OPINION

BRACE, P. J.

This is an appeal by the city of St. Louis, one of the defendants, from a judgment of the St. Louis Circuit Court, in favor of the plaintiff against said defendant, for the sum of two thousand dollars damages for personal injuries suffered by the plaintiff from a fall upon a sidewalk of said city, alleged to have been caused by the defective and dangerous condition thereof.

Demurrers to the evidence by the other defendants, William Kramer and Nat. Abraham, having been sustained, and the demurrer of the city thereto overruled, the case was submitted to the jury, as to the city, on instructions upon the main issues, as follows:

For Plaintiff.

1. The court instructs the jury that on the 13th day of October, 1900, at the time of the alleged injuries to plaintiff, the defendant (the city of St. Louis), was and had been for a long time, a municipal corporation, having by the terms of its charter the exclusive control and management of its streets and sidewalks thereon, and had exclusive control of the construction of sidewalks thereon, and it was and is the duty of said defendant to maintain the sidewalks in use by the general public in a reasonably safe condition for persons passing over the same in both the daytime and the night-time, and if you believe from the evidence that the sidewalk in question on High street in front of 1019 High street, where it is claimed the said Mrs. Norton was injured, was not reasonably safe by reason of being torn up, the brick scattered loosely thereon, and so was defective and dangerous to persons passing over the same by day or by night, and such defective condition was known to defendant, or by the exercise of reasonable care on the part of the officers charged with the duty of repairing sidewalks or having them repaired, could have been known to such officers, in time to have remedied such defective condition before the accident to plaintiff, then the defendant and its said officers were guilty of negligence, and if the said Mrs. Norton in the exercise of ordinary care while walking on said sidewalk at the time was hurt and injured, and if the plaintiff has suffered any loss on account thereof, then you will return a verdict for the plaintiff.

2. The court instructs the jury that there is no fixed or definite rule as to the length of time the alleged defective condition of the sidewalk shall have existed in order to charge the defendant with negligence in failing to remedy a defect therein; that each case must depend upon the facts and circumstances attending it. And if you find from the evidence that there was a defect in said sidewalk, by reason of the loose brick and torn up condition thereof and that such defect had existed for a sufficient length of time for the officer or officers of said city whose duty it was to repair said sidewalk or to have the same repaired, by the exercise of ordinary care on their part to have discovered such defect, and such officer or officers had had a reasonable time after such defect might have been discovered in which to repair or cause the same to be repaired and had not done so, then the defendant is guilty of negligence, and if the plaintiff as a result of such negligence, and while in the exercise of ordinary care on her part was hurt and injured, then it is your duty to return a verdict in her favor, and the jury will so find.

3. The jury are instructed that in this case the plaintiff seeks to recover damages for injuries alleged to have been received by her on acount of the torn up condition of a sidewalk on High street in said city, which it was the duty of the city to keep in repair. Her claim is based upon the negligence of the city in not repairing the defect, and her injury resulting therefrom. The defendant, the city of St. Louis, denies both the negligence and the injury. Under the evidence it is for you to determine these questions. It was the duty of the city to keep the sidewalk in repair; the...