Best v. City of St. Joseph

• Decision Date: 04 May 1914
• Docket Number: No. 10,647.,10,647.
• Citation: 166 S.W. 817,179 Mo. App. 330
• Parties: BEST v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

166 S.W. 817

179 Mo. App. 330

BEST v. CITY OF ST. JOSEPH.

No. 10,647.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

1. JUDGMENT (§ 251)—ACTS OF NEGLIGENCE— PLEADING AND PROOF—CONFORMITY.

Plaintiff may not recover for an act of negligence not included in the petition.

2. MUNICIPAL CORPORATIONS (§ 816)—SIDEWALKS —DEFECTS—VARIANCE.

Where plaintiff, who was injured by falling on a sidewalk, alleged that the walk was dangerous by ice forming in lumps and ridges thereon, and the proof showed such defect and that it had remained so long enough to enable the city to know of it by ordinary care, and plaintiff's right to recover was based in the instructions on a finding of such facts, a contention that plaintiff was allowed to recover on the ground that the walk itself was rough and uneven having been constructed of cement blocks laid loosely on the ground with large and irregular cracks between them, which the evidence also tended to show, was unsustainable.

3. MUNICIPAL CORPORATIONS (§ 822)—INJURIES TO PEDESTRIANS — DEFECTIVE SIDEWALKS —INSTRUCTIONS.

In an action for injuries to a pedestrian by falling on ice and snow on a city sidewalk, an instruction that before the jury could find for plaintiff they must believe that the ridges and lumps of snow and ice constituted an obstruction, rendered the walk dangerous, and were the direct cause of the alleged fall, necessarily included the defense that the defective condition of the walk itself, and not the snow and ice, caused the injury, and it was not error to omit to charge that the jury, in order to find for plaintiff, must also find that the defective condition of the walk as constructed did not cause the injury.

4. TRIAL (§ 260)—INSTRUCTIONS—REQUEST— INSTRUCTION GIVEN.

It is not error to refuse requests to charge which are covered by instructions given.

5. APPEAL AND ERROR (§ 171)—REVIEW—ASSUMED FACTS.

Where an action for injuries on a defective sidewalk was tried throughout on the theory that the fact that the walk was in the city and was a city sidewalk was not a disputed issue, a judgment for plaintiff would not be reversed because there was no testimony that the walk in question was located in the city.

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Carrie Best against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank B. Fulkerson, L. E. Thompson, and Herman Hess, all of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff sued the city of St. Joseph for injuries received from a fall upon a sidewalk in said city. Her petition charged that at the...