Boland v. Kansas City

• Decision Date: 02 July 1888
• Parties: MARGARET BOLAND, Respondent, v. THE CITY OF KANSAS, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 8

MARGARET BOLAND, Respondent, v. THE CITY OF KANSAS, Appellant.

Court of Appeals of Missouri, Kansas City.

July 2, 1888

Appeal from Jackson Circuit Court. --HON. JAMES H. SLOVER, Judge.

REVERSED AND REMANDED.

Statement of case by the court.

This was an action by the plaintiff for the recovery of damages on account of injuries sustained, as alleged, by reason of an unsafe and dangerous sidewalk on one of defendant's streets.

The sidewalk complained of was on the north side of Fifth street in Kansas City, and the adjacent ground inside of the sidewalk was twenty or thirty feet lower than it. The sidewalk was built by defendant. It was constructed of plank and in such a manner that it was higher on the inside of it next to the curb of the street, than on the outside next to the hole above mentioned. The difference in height between the inside and outside edges of the sidewalk was from ten inches to two feet, according to the varying statements of the witnesses. The sidewalk was ten feet wide. There were at the place of the accident no sufficient railings along the outside edge of the sidewalk to prevent one from falling therefrom into the ravine adjacent thereto.

The plaintiff testified that she had often passed over the sidewalk previous to the accident, but that at that time she did not know anything about the sidewalk slanting at that place. On account of the sidewalk slanting from the inner side to the outer side, when wet or muddy, it was slippery.

There was on the street opposite to the place of the accident a sidewalk in good condition and open to travel.

The plaintiff, on the day of the accident, after dark, as she testified, when the sidewalk was quite muddy, attempted to pass over it; in so doing she slipped and fell onto the sidewalk, and rolled from it into the ravine suffering in consequence thereof the injuries complained of.

The defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused.

For the plaintiff the court gave the following instructions:

" 1. The court instructs the jury that the defendant corporation had exclusive control and power over the streets and sidewalks in the City of Kansas, Jackson county Missouri, to open, grade, pave or otherwise improve them and to keep the same in repair, and that it was the duty of the defendant to build its sidewalks as well as to keep them in proper state of repair; that they should be reasonably safe for travel by night as well as by day, and to provide the same with railing or fencing so as to reasonably secure persons from falling off the same.

2. If the jury believe from the evidence that the defendant corporation constructed the sidewalk on Fifth street at the place alleged in plaintiff's petition, as shown by the evidence, without railing or fencing, or not sufficient railing or fencing, so as to reasonably secure persons from falling off such sidewalk, and that while such sidewalk at said place was in such condition, if you so find, and in consequence of such condition of the sidewalk, the plaintiff while walking on such sidewalk at said place, and while in the exercise of reasonable and ordinary care on her part, fell therefrom to the ground adjacent thereto and was injured thereby, then she is entitled to recover in this suit.

3. The court instructs the jury that if they believe from the evidence, that on or about the twenty-first day of April, 1885, the plaintiff, while walking on the sidewalk on the north side of Fifth street and just west of Gillis street, in Kansas City, Missouri, on her way home in the eastern part of the city, she fell from said sidewalk to the ground adjacent thereto and was injured by such fall, and that at the place where such fall occurred, the sidewalk was sloped or slanted toward the north sufficiently to render the same unsafe for persons traveling thereon, and that the defendant at the time of the accident knew, or by the exercise of reasonable diligence might have known, of such condition of such sidewalk, and that by reason of the condition of such sidewalk, at said place, the plaintiff, while in the exercise of ordinary and reasonable care, fell therefrom and was injured thereby, she is entitled to recover in this suit; and by reasonable and ordinary care is meant such care and caution as a person of ordinary prudence would exercise under the same or similar circumstances.

4. The court instructs the jury that while the City of Kansas is not an insurer of the lives and limbs of persons using the streets and sidewalks, yet it is bound to build its sidewalks and keep them in a state of repair mentioned in these instructions; and unless it does so it is liable for damages if injury results therefrom to persons using the same who are in the exercise of the care defined in these instructions."

The court also gave for the plaintiff an instruction on the measure of damages, which need not be noticed, and refused to give for the defendant the following instruction:

" 4. If you find from the evidence at the time complained of by the plaintiff there was a good and safe sidewalk on the opposite side of said Fifth street, but that the plaintiff, knowing of the alleged dangerous and unsafe condition of the sidewalk on said north side of said street, or might have known of the same by the exercise of ordinary care and prudence, did carelessly and negligently attempt to pass along the sidewalk complained of and was injured, then you must find for the defendant."

The instructions given for the defendant we need not notice, since they were in no respect similar to this instruction, refused by the court.

From a judgment against it the defendant has appealed to this court.

R. W. Quarles and W. A. Alderson, for the appellant.

(1) The demurrer to the evidence should have been sustained. The evidence of the appellee exempts the appellant from liability. Wilson v. Charleston, 8 Allen 137; Craig v. Sedalia, 63 Mo. 417, 420; Kelley v. Transit Company, 11 Mo.App. 1; Schaeffer v. Sandusky, 33 Ohio St. 246; Macomb v. Gnnthers, 6 Ill.App. 470; Bruker v. Covington, 69 Ind. 33; Momena v. Kendall, 14 Ill.App. 229; Erie v. Magill, 101 Pa.St. 616; Indianapolis v. Cook, 99 Ind. 10; Hartman v. Muscatine, 70 Ia. 511; Quincy v. Barker, 81 Ill. 300. (2) The following instruction presented by the appellant and refused by the court should have been given: " If you find from the evidence at the time complained of by the plaintiff there was a good and safe sidewalk on the opposite side of said Fifth street, but that the plaintiff, knowing of the alleged dangerous and unsafe condition of the sidewalk on said north side of said street, or might have known of the same by the exercise of ordinary care and prudence, did carelessly and negligently attempt to pass along the sidewalk complained of and was injured, then you must find for the defendant." Parkhill v. Brighton, 61 Iowa. 103; Momena v. Kendall, 14 Ill.App. 229; Erie v. Magill, 101 Pa.St. 616; McGinty v. Keokuk, 66 Iowa 725; Hartman v. Muscatine, 70 Iowa 511; Fallian v. Muscatine, 70 Iowa 436; Lovengath v. Bloomington, 71 Ill. 238.

Bacon & Hamsberger, for the respondent.

(1) A demurrer to the evidence admits everything which the testimony conduces to prove, though but in a slight degree. In passing upon the demurrer the court will make every inference of fact in favor of the party offering the evidence, which the evidence warrants and which the jury might, with any degree of propriety, have inferred. Wilson v. Board, 63 Mo. 137; Buesching v. Gas Co., 73 Mo. 219; Frick v. Railroad, 75 Mo. 595; Loewer v. Sedalia, 77 Mo. 431. (2) What acts or conduct amount to contributory negligence is necessarily governed by the circumstances of the particular case. The recklessness or heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of the complainant amounted to contributory negligence. When it is questionable, it is the province of the jury to say whether, under the circumstances of the particular case, the conduct amounts to contributory negligence. Taylor v. Railroad, 26 Mo.App. 336. When the undisputed facts relied upon to establish contributory negligence are such as may, in the judgment of sensible men lead to very different conclusions as to whether they establish contributory negligence or want of care the jury is the tribunal to determine the question. Petty v. Railroad, 88 Mo. 306; Norton v. Ittner, 56 Mo. 351; Mauerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653; Scoville v. Railroad, 81 Mo. 434. The cases cited by appellant in support of its first proposition are all based upon the ground that the complainants knew of the danger they encountered, and also failed to use ordinary care to avoid the same. (3) When a street is thrown open to public use it is the duty of the city to keep the same in a condition reasonably safe for persons traveling thereon, with ordinary care and prudence, and whether a given street is in such a condition, is a practical question to be determined by the jury in each case, by...