Baker v. City of Independence

• Citation: 106 Mo. App. 507,81 S.W. 501
• Parties: BAKER v. CITY OF INDEPENDENCE.
• Decision Date: 16 May 1904
• Court: Missouri Court of Appeals

81 S.W. 501

106 Mo. App. 507

BAKER v. CITY OF INDEPENDENCE.

Kansas City Court of Appeals. Missouri.

May 16, 1904.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS—PERSONAL INJURIES—INSTRUCTIONS —RES ADJUDICATA — APPEAL — FAILURE TO SERVE ABSTRACT.

1. In an action against a city for injuries from a defective sidewalk, an instruction that it was the duty of defendant to use reasonable care to keep its sidewalks in condition for travel, and, if it failed to do so, it was liable to plaintiff for damages resulting from such failure by reason of his wife falling upon such defective sidewalk, if the jury should find that she did so fall, was objectionable, because assuming that the sidewalk was defective.

2. In an action against a city for injuries from a defective sidewalk, error in an instruction assuming that the sidewalk was defective was cured by a subsequent instruction which required plaintiff to prove that the walk was unsafe.

3. In an action against a city for injuries from a defective sidewalk, error in an instruction making defendant liable for the dangerous condition of the walk, if known to it before the accident, without requiring it to have been known for a sufficient length of time to have enabled the city to repair it, could not be regarded as harmless, on the ground that the case was tried on the theory of only constructive notice.

4. In an action against a city by a husband for injuries to his wife caused by a defective sidewalk, error in instructions prejudicial to the city cannot be regarded as of no consequence, on the ground that the wife had previously recovered on the same state of facts, where the

former judgment was not pleaded as res adjudicata.

5. An appeal will not be dismissed for failure of appellant to serve a copy of its abstract and brief 20 days before the cause was docketed for hearing, where such failure was inadvertently caused by appellant's attorney miscalculating the number of days.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Samuel Baker against the city of Independence. From a judgment for plaintiff, defendant appeals. Reversed.

Flournoy & Flournoy, for appellant. Callahan & Dryden, for respondent.

BROADDUS, J.

The plaintiff sued to recover for loss of services of his wife, who, it is alleged, was injured by reason of having fallen upon one of defendant's streets, whereby she was rendered unable to perform her household duties, etc. The petition charges "that said sidewalk or crossing had been in the unsafe and dangerous condition hereinafter set forth for a long time prior to November 7, 1898, and for such a length of time as that defendant knew, and did know, or by the exercise of ordinary care could have known, of such unsafe and dangerous condition. * * *" The defect which caused plaintiff to fall was a broken board in the sidewalk. The trial resulted in a verdict and judgment for the plaintiff, from which defendant appealed.

One of the contentions of the defendant is that the plaintiff's instructions authorized a finding for him upon a different cause of action from that stated in the petition. But after an examination of the evidence preserved in the abstract, we find that the contention is not well founded.

Instructions Nos. 2 and 3...