Ballard v. Kansas City

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

104 S.W. 1126

126 Mo.App. 541

SALLIE A. BALLARD, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

October 7, 1907

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Edwin C. Meservey, City Counselor, and Francis M. Hayward Associate City Counselor, for appellant.

The court below erred in giving instructions 2P. and 3P, asked by plaintiff because such instructions did not inform the jury that defendant was entitled to a reasonable opportunity after knowledge of the defect and before the injury to plaintiff in which to repair the sidewalk. Richardson v Marceline, 73 Mo.App. 360; Maus v. Springfield, 101 Mo. 693; Badgley v. St. Louis, 149 Mo. 122; Ball v. Neosho, 109 Mo.App. 683.

Hamner Hamner & Calvin for respondent.

Instructions 2P and 3P, complained of, were each before this court before and were held good, and it is a correct declaration of the law, time honored, and used in every case in the exact words as here given, and contains every element appellant claims lacking therein.

OPINION

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, Missouri, 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 supported by a rotten and decayed stringer, and said board went down on one side and up on the other, and that plaintiff, without fault on her part, was by reason thereof, thrown to the ground and received the injuries complained of, if you believe she was thrown to the ground and injured in the manner detailed to you in the evidence, and that said walk at said point was not reasonably safe for public travel and for pedestrians passing thereover, and that defendant knew, or by the exercise of ordinary care and caution might have known, of said defects therein, if any, in time to have repaired the same and made the same...