Best v. City of St. Joseph

• Decision Date: 04 May 1914
• Citation: Best v. City of St. Joseph, 166 S.W. 817, 179 Mo. App. 330 (Kan. App. 1914)
• Parties: CARRIE BEST, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

166 S.W. 817

179 Mo.App. 330

CARRIE BEST, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

May 4, 1914

Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.

AFFIRMED.

Judgment affirmed.

F. B Fulkerson, L. E. Thompson and Herman Hess for appellant.

Mytton & Parkinson for respondent.

OPINION

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 point in question rough, knotty, uneven and slippery ridges of ice had formed and remained for a long time prior to the accident and had rendered the sidewalk dangerous and unsafe.

There was evidence tending to fully support every issue raised by the petition, and the jury found a verdict for her in the sum of $ 1000.

Plaintiff's evidence also showed that the walk itself was rough and uneven having been constructed of blocks of cement laid loosely upon the ground with large and irregular cracks between them. It is defendant's contention that it was the defectively constructed sidewalk that caused the injury and not the accumulation of snow and ice in ridges or hummocks; and that the petition having charged one specification of negligence, plaintiff ought not to be allowed to recover upon another and different ground.

There is no doubt that a plaintiff should not be allowed to recover for an act of negligence not included in the petition. But in our opinion this was not done in this case. Plaintiff did not plead one ground and recover upon another. She charged that the sidewalk was rendered dangerous and unsafe by reason of the ice forming in lumps and ridges and the proof showed, or tended to show, that such was the case and that it had remained thus for a sufficient length of time to have enabled the city to know of it in the exercise of ordinary care. Her instructions to the jury predicated her right to recover solely upon the finding of such facts by the jury.

It was not necessary for plaintiff's instruction No. 1 (complained of by defendant) to embrace the defense that the defective condition of the sidewalk itself, and not the snow and ice, caused the injury because the instruction by its very terms necessarily included it. The instruction told the jury that before plaintiff was entitled to recover the jury must believe that the ridges, knots and lumps of snow and ice, if any, constituted an obstruction,...