Ballard v. Kansas City

• Decision Date: 07 October 1907
• Citation: 104 S.W. 1126,126 Mo. App. 541
• Parties: BALLARD v. KANSAS CITY.
• Court: Missouri Court of Appeals

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 walking on and along the sidewalk on the east side of Agnes avenue, in Kansas City, Mo., at a point in front of the house numbered 1827 Agnes avenue, and that while so walking plaintiff's companion stepped on one end of a board in said walk, and that the said board was...