Ballard v. Kansas City

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJohnson
Citation104 S.W. 1126,126 Mo. App. 541
PartiesBALLARD v. KANSAS CITY.
Decision Date07 October 1907
104 S.W. 1126
126 Mo. A. 541
BALLARD
v.
KANSAS CITY.
Kansas City Court of Appeals, Missouri.
October 7, 1907.
Rehearing Denied November 4, 1907.

1. MUNICIPAL CORPORATIONS — DEFECTS IN SIDEWALK — DUTY TO REPAIR.

The liability of a city for injuries sustained by a pedestrian on account of a defect in a sidewalk could arise only from the city's negligence in not repairing the defect within a reasonable time after it had actual notice thereof, or, by the exercise of reasonable care and diligence, might have received such notice.

2. APPEAL AND ERROR — INSTRUCTIONS TO JURY — PREJUDICIAL EFFECT.

Where the court erroneously instructed as to notice to the city of a defective sidewalk which caused plaintiff's injury, and the city's duty to repair the walk, and there was a conflict of evidence as to the existence of the defect, and judgment was had for plaintiff, it must be assumed that the error was prejudicial, and, not being cured by other instructions, the judgment will be reversed.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action for personal injuries by Walter Ballard, executor, against Kansas City. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. C. Meservey and F. M. Hayward, for appellant. Hamner, Hamner & Calvin, for respondent.

JOHNSON, J.


This cause was here on a former appeal taken by defendant, and was reversed and remanded for error in the instructions. Ballard v. Kansas City, 110 Mo. App. 391, 86 S. W. 479. On a retrial, plaintiff again prevailed and defendant again appealed. Plaintiff claims she was injured by tripping over a loose board in a sidewalk maintained by defendant on one of its public thoroughfares, and that defendant negligently permitted the defect to remain after it should have been repaired, had reasonable care been exercised. Her witnesses testify that the board had become detached as the result of natural decay, and variously give the beginning of the detachment at from one month to two years before the date of injury, while the witnesses for defendant deny the existence of a loose board at the place where plaintiff claims she fell, and state that the sidewalk had been thoroughly repaired about one month before the injury.

On behalf of plaintiff, the court instructed the jury, in part, as follows: "(2P) The court instructs the jury that if you believe from the evidence that on or about the third week in May, 1900, plaintiff, together with a companion, was...

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9 practice notes
  • Glasgow v. City of St. Joseph, No. 39046.
    • United States
    • United States State Supreme Court of Missouri
    • December 4, 1944
    ...thereof is reversibly erroneous. Allen v. Kansas City, 64 S.W. (2d) 765; Pearce v. Kansas City, 137 S.W. 629; Ballard v. Kansas City, 104 S.W. 1126; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Richardson v. City of Marceline, 73 Mo. App. 360; Gerber v. Kansas City, 79 S.W. 717, 10......
  • McGarvey v. City of St. Louis, No. 40902.
    • United States
    • Missouri Supreme Court
    • February 14, 1949
    ...the same prior to the date of plaintiff's injury. State ex rel. Long v. Ellison, 217 Mo. 571, 199 S.W. 984; Ballard v. Kansas City, 126 Mo. App. 541, 104 S.W. 1136; Moses v. Kansas City Pub. Serv. Co., 188 S.W. (2d) 538; Allen v. Kansas City, 64 S.W. (2d) 765. (2) Instruction 1, given at th......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...The trial court erred in giving plaintiff's main instruction. Allen v. Kansas City, 64 S.W. (2d) 765, l.c. 766; Ballard v. Kansas City, 104 S.W. 1126. (3) The verdict is excessive and is the result of passion and prejudice occasioned in large part by the wrongful conduct of the plaintiff. F......
  • Drimmel v. Kansas City, No. 10728.
    • United States
    • Missouri Court of Appeals
    • May 4, 1914
    ...it. And in support of this objection defendant cites Pearce v. Kansas City, 156 Mo. App. 230, 137 S. W. 629; Ballard v. Kansas City, 126 Mo. App. 541, 104 S. W. 1126. But the facts in this case as to the length of time the defective condition of the sidewalk had existed before the injury ma......
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9 cases
  • Glasgow v. City of St. Joseph, No. 39046.
    • United States
    • United States State Supreme Court of Missouri
    • December 4, 1944
    ...thereof is reversibly erroneous. Allen v. Kansas City, 64 S.W. (2d) 765; Pearce v. Kansas City, 137 S.W. 629; Ballard v. Kansas City, 104 S.W. 1126; Nimmo v. Perkinson Bros. Const. Co., 85 S.W. (2d) 98; Richardson v. City of Marceline, 73 Mo. App. 360; Gerber v. Kansas City, 79 S.W. 717, 10......
  • McGarvey v. City of St. Louis, No. 40902.
    • United States
    • Missouri Supreme Court
    • February 14, 1949
    ...the same prior to the date of plaintiff's injury. State ex rel. Long v. Ellison, 217 Mo. 571, 199 S.W. 984; Ballard v. Kansas City, 126 Mo. App. 541, 104 S.W. 1136; Moses v. Kansas City Pub. Serv. Co., 188 S.W. (2d) 538; Allen v. Kansas City, 64 S.W. (2d) 765. (2) Instruction 1, given at th......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...The trial court erred in giving plaintiff's main instruction. Allen v. Kansas City, 64 S.W. (2d) 765, l.c. 766; Ballard v. Kansas City, 104 S.W. 1126. (3) The verdict is excessive and is the result of passion and prejudice occasioned in large part by the wrongful conduct of the plaintiff. F......
  • Drimmel v. Kansas City, No. 10728.
    • United States
    • Missouri Court of Appeals
    • May 4, 1914
    ...it. And in support of this objection defendant cites Pearce v. Kansas City, 156 Mo. App. 230, 137 S. W. 629; Ballard v. Kansas City, 126 Mo. App. 541, 104 S. W. 1126. But the facts in this case as to the length of time the defective condition of the sidewalk had existed before the injury ma......
  • Request a trial to view additional results

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