Bornhoft v. City of Jefferson

• Decision Date: 23 May 1938
• Docket Number: No. 19113.,19113.
• Citation: 118 S.W.2d 93
• Parties: BORNHOFT v. CITY OF JEFFERSON.
• Court: Missouri Court of Appeals

118 S.W.2d 93

BORNHOFT v. CITY OF JEFFERSON.

No. 19113.

Kansas City Court of Appeals. Missouri.

May 23, 1938.

Rehearing Denied June 13, 1938.

Appeal from Circuit Court, Cole County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Action by Anna Bornhoft against the City of Jefferson for damages on account of injuries allegedly sustained by her while walking on an allegedly defective sidewalk of defendant city. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

John O. Bond, of Jefferson City, for appellant.

Irwin, Bushman & Buchanan, of Jefferson City, for respondent.

REYNOLDS, Judge.

This is an appeal by the defendant city from an adverse judgment of $500 rendered against it in the circuit court of Cole county in favor of Anna Bornhoft, the plaintiff, for damages on account of personal injuries alleged to have been sustained by her while walking on a sidewalk in the defendant city, maintained by it, by reason of its negligence and carelessness in failing to exercise reasonable care to keep such sidewalk in a reasonably safe condition for the use of travelers thereon and in maintaining said sidewalk with a precipitous condition therein, when it knew, or by the exercise of reasonable care could have known, of such condition and of its dangerous character and, in the exercise of reasonable care, could have repaired it long before the date of the plaintiff's injury.

The petition alleges the maintenance by the defendant of the sidewalk in question along the north side of Miller Street between Walnut Street and Mulberry Street of said city, with a section thereof tilted upward and a precipitous step-off therein from six to eight inches from the next adjacent section thereof. It alleges that, on January 5, 1937, the plaintiff, while walking on said sidewalk and in the exercise of due care for her own safety, stepped off the high section therein to the lower in the dark and was thrown from her balance and her foot sprained and fractured and that the injury sustained is painful and permanent and has caused her to lose time from work and to expend money for medical treatment or to incur obligations for such treatment.

The negligence complained of on the part of the defendant city is based in the petition on particulars as follows:

"1. Because the defendant City, its agents, servants and employees, negligently and carelessly failed to exercise reasonable care in keeping said sidewalk in a reasonably safe condition for the passage of pedestrians at night, particularly this plaintiff.

"2. Because of the negligence and carelessness of the defendant City, its agents, servants and employees, in allowing said sidewalk and the precipitous condition of the same to remain unrepaired for a long time prior to January 5, 1937, when they knew or by the exercise of reasonable care would have known of such condition of said sidewalk; and that it was dangerous for pedestrians walking along and over it, especially at night, in time by the exercise of reasonable care to have repaired same long before the date of plaintiff's injuries, which the defendant, its agents, servants and employees, negligently and carelessly failed to do."

The damages suffered are alleged in the petition to have been $2,000; and judgment for such sum is therein prayed for.

The answer is a general denial. As originally filed, in addition to the general denial, it contained a special plea, which upon motion was stricken out by the trial court. However, as no complaint appears to be made of such action by the court, it is unnecessary to set out such plea.

The trial, which was before the court and a jury, resulted in a verdict by the jury for the plaintiff for $500, upon which verdict and in accordance therewith the judgment appealed from (as above noted) was ordered by the court.

It was admitted by the defendant upon the trial that it is a city of the third class and that the sidewalk in question is within its territorial limits and is maintained by it.

The evidence tends to show that, at the time of the plaintiff's injury, the sidewalk upon which she was injured was being maintained by the city with the step-off therein, described in the petition, except that it does not show that such step-off was some six or eight inches in depth. The testimony of various witnesses as to its depth ranges from one and one-half inches to four inches. The plaintiff testified that it was between three and four inches in depth and was deep enough, when she stepped off it, to throw her off her balance. One witness for the plaintiff placed its depth at about three inches, and another at about two inches.

The evidence further tends to show that it had been maintained in the condition in which it was at the time of the plaintiff's injury for quite a period of time, at least around six months and over.

The plaintiff testified that, about seven o'clock of the night of January 5, 1937, the date upon which she was injured, she, in company with Miss Florence Tissue, a neighbor, started from her home in Jefferson City to walk to Junior College in said city to attend an adult school which was being conducted there; that, in going to said college, they came upon the sidewalk in question; that, while she was walking along it in the manner she usually did when thereon, a limb, hanging low over the walk from a tree at the side, struck her in the face and drew her attention, just as they reached where the step-off in the walk was and just as she stepped from the higher section of the walk to the lower, and she "got kind of a jerk" and sprained her ankle; that, as a result, her foot pained her so that she was unable to walk back home after having gone on to the college but had to ask some one to take her home; that her foot and ankle pained her so that she was not able to sleep the first few weeks afterward; that they were very much swollen; and that she had to sit in a chair for weeks with her foot braced and rested on another chair. She testified at the time of the trial that, at times, it still pained her. She testified that, at the time of her accident, it was dark; that there was no moonlight that night and no street light at the point where she was injured; that there were trees along the sidewalk; that she knew of the step-off in the walk but could not at that time see just where it was on account of the darkness but that she had it in mind and was trying to locate it and called the attention of Miss Tissue to the fact that it was somewhere near; that, at the time she stepped off of it, she did not see it because the limb struck her just at that time; that, at that time, Miss Tissue had hold of her arm and she did not fall to the ground; that, at the time she was injured, she was working at the W. P. A. sewing room in Jefferson City and was drawing wages regularly at the rate of $2.24 per day; that she was compelled by her injury to quit her work and was not able to resume her work until March 8, 1937, and suffered a loss of time from work and her wages between the date of her injury and such latter date. She testified that she was compelled to call a doctor to attend her injuries and that she called Dr. Bedford, who bandaged her foot and later taped it; that he called on her five times; and that his usual charges were $2.50 per call.

Dr. Bedford testified that he found her foot very much swollen and she apparently suffered much pain from it and he was compelled to require her to keep off of it for several weeks and that he bandaged it and taped it for her and otherwise instructed her as to its care. In answer to an hypothetical question submitted to him, he testified that a step-off in the sidewalk three or four inches in depth, where the plaintiff walking in her usual manner suddenly stepped off of it, could have produced her injuries in question.

There is some evidence to the effect that other pedestrians on the walk had fallen at the place therein where the step-off was prior to the plaintiff's injury.

The defendant city assigns error directed at the action of the trial court in the giving of instructions 1, 2, and 4 in behalf of the plaintiff; in the admission of the testimony of witnesses for the plaintiff to the effect that other persons had fallen at the same place in the sidewalk where the plaintiff fell, prior to the time that she fell; and in refusing to grant a new trial.

The defendant criticises instruction No. 1, which covers the whole case and directs a verdict, and contends that it fails to require the jury to find that the sidewalk in question was in a dangerous or unsafe condition for use or that the defendant city had not used reasonable care to maintain the same in a reasonably safe condition or that the defendant was negligent in any manner in its maintenance but that it required the jury to find only that the sidewalk was defective and precipitous.

Instruction No. 1 told the jury that it was the duty of the defendant city to use reasonable care to keep its sidewalks free of dangerous defects and in a reasonably safe condition for pedestrians to walk thereon both day and night and, in effect, told the jury that, if it found from the facts in evidence that the defendant did not use such care and did not keep its sidewalks free of dangerous defects and in a reasonably safe condition for use and the plaintiff while walking thereon was injured by reason of the defendant's failure (on account of such dangerous defects) to keep the same in a reasonably safe condition for use and that the defendant by the exercise of ordinary care could have known of such dangerous defects in the sidewalk and of its unsafe condition and could with the exercise of such care have repaired said sidewalk prior to the time that the plaintiff was injured but failed to do so, to find for the plaintiff.

That the instruction does not use the word "negligent" or the word "negligently" is immaterial. The facts constituting...