Bornhoft v. City of Jefferson

• Decision Date: 29 May 1939
• Docket Number: No. 19113.,19113.
• Citation: 128 S.W.2d 1080
• Parties: BORNHOFT v. CITY OF JEFFERSON.
• Court: Missouri Court of Appeals

128 S.W.2d 1080

BORNHOFT v. CITY OF JEFFERSON.

No. 19113.

Kansas City Court of Appeals. Missouri.

May 29, 1939.

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

Personal injury action by Anna Bornhoft against City of Jefferson. Judgment for plaintiff, and defendant appeals.

Judgment reversed and cause remanded.

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

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

BLAND, Judge.

This is an action for damages for personal injuries suffered by plaintiff while she was walking on a sidewalk claimed to have been negligently maintained by the defendant. Plaintiff recovered a verdict and judgment in the sum of $500, and defendant has appealed.

After the appeal reached this court the cause was submitted and the judgment affirmed. An opinion, covering all of the points raised in the case, was written by the late Judge Reynolds, affirming the judgment. See Bornhoft v. City of Jefferson, Mo. App., 118 S.W.2d 93.

However, that part of the opinion holding that plaintiff's Instruction No. 4 was not reversible error, was quashed by the Supreme Court on Certiorari. See State ex rel. City of Jefferson v. Shain, 124 S.W. 2d 1194.

The instruction reads as follows: "The court instructs the jury that if you find and believe from the evidence that plaintiff, while exercising ordinary care for her own safety, was injured while walking along and upon defendant's sidewalk by reason of the defective condition of said sidewalk, if you so find, and that defendant knew or by the exercise of reasonable care could have known of such condition of the sidewalk in time by the exercise of reasonable care to have repaired the same prior to January 5, 1937, then you may find the issues for the plaintiff, notwithstanding the fact that she knew before hand the condition of the sidewalk and had from time to time passed over the sidewalk with safety to herself."

We held in our opinion, that the instruction, standing alone, was erroneous in that it omitted the essential requirement that the jury find that the sidewalk in question was not maintained in a reasonably safe condition and permitted them to return a verdict for the plaintiff if they found that the sidewalk was defective in any manner. However, we further held that the error was cured by other instructions given by the court. The Supreme Court disagreed with us in this holding, and ruled that the instruction was erroneous because plaintiff could not recover on account of a mere defect in the sidewalk but the defect must be one causing a condition not reasonably safe or one dangerous to travelers, and that the error in the instruction was not cured.

Since the rendition of the opinion by the Supreme Court this case has been set down again in this court for further hearing, and has been submitted by the parties hereto.

It is urged by the plaintiff that the result, upholding the action of the court in giving plaintiff's Instruction No. 4, reached by this court on the original submission of the case, was a proper one, although the reason given therefor by us was a wrong one. To say that we may now uphold the instruction for a reason which, in our opinion, is a right one, after the Supreme Court has declared the instruction erroneous, is a novel proposition. However, we feel there is no reason that can be advanced to uphold it.

The proper reason upon which plaintiff contends the instruction should be upheld is that, inasmuch as the instruction requires the jury to find that plaintiff was...