Bonine v. City of Richmond

• Decision Date: 30 April 1882
• Citation: 75 Mo. 437
• Parties: BONINE v. THE CITY OF RICHMOND, Appellant.
• Court: Missouri Supreme Court

75 Mo. 437

BONINE

v.THE CITY OF RICHMOND, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

Shotwell & Ball and James L. Farris for appellant.

Joseph E. Black, James W. Black, C. T. Garner & Son and John Mason for respondent.

NORTON, J.

This is a suit instituted by Eliza Bonine, in which her husband is joined, to recover damages for alleged personal injury occasioned, as averred, by the carelessness and negligence of defendant in suffering a board upon the sidewalk on the north side of Lexington street, in defendant city, to become loose, so that a person stepping on one end of the board would cause the other end to fly up suddenly. The petition alleged that while plaintiff was walking along said sidewalk with her husband, and a little behind him, he stepped on one end of said board causing the other end to fly up, catching plaintiff's foot, whereby, without fault upon her part, she was violently thrown upon said sidewalk, whereby the bones of her wrist were broken, from the effects of which she lost the use of her arm. Defendant, in the answer, denies the allegations of the petition, and avers that if plaintiff sustained injury it was because of her own negligence.

The cause was tried in the circuit court of Clinton county, where it had been taken by change of venue, and judgment was rendered for plaintiff, from which defendant has appealed, and assigns as the chief ground of error the action of the court in refusing the following instructions asked by the defendant:

1. Unless the jury believe from the evidence that the defendant was by its charter required to keep the streets and sidewalks in a reasonably safe and good traveling condition, they will find for defendant.

3. Although the jury may believe from the evidence that said sidewalk was not in a reasonably safe traveling condition, yet if they further believe that the condition thereof was not known to the corporation, they will find for defendant.

4. Although the jury may believe from the evidence that the plaintiff, Eliza Bonine, stumbled and fell on a loose plank of said sidewalk, yet if they further believe that on the evening before the show the street commissioner carefully nailed down all loose plank on the sidewalk, and that on the day of the show, a large crowd passed over said sidewalk, and that the city authorities were not aware of the fact of said plank being loose, then defendant was not guilty of negligence, and they will find for defendant.

7. A municipal corporation is not an insurer against accident on the street and sidewalks, nor is every defect therein, though it may cause the injury sued for, actionable.

9. Although the jury may believe from the evidence that plaintiff was injured in consequence of a defect in defendant's sidewalk, unless they further believe from the evidence that defendant had notice of the defect in the sidewalk which caused the injury, or facts from which notice might reasonably have been inferred, they will find for defendant.

1. CITY SIDEWALKS: question of law.

The first instruction was properly refused, because it submitted a question of law to the jury. It was the province of the court and not the jury to determine whether or not, under the charter, it was the duty of defendant to keep its streets and sidewalks in repair.

The third instruction was properly refused, as it predicated defendant's non-liability on the fact alone of actual knowledge by it of the defect, and wholly ignored all other elements of liability. The fourth instruction is vicious for the same reason.

2. INSTRUCTIONS.

The seventh instruction asserts simply an abstract principle of law having no practical bearing on the case, misleading in its character, and was, therefore, properly refused.

3. MUNICIPAL CORPORATIONS: their liability for defective sidewalks.

The ninth instruction, though objectionable in its phraseology, and wanting in perspicuity, we think should have been given,...