Burdoin v. The Town of Trenton

• Decision Date: 05 June 1893
• Citation: Burdoin v. The Town of Trenton, 22 S.W. 728, 116 Mo. 358 (Mo. 1893)
• Parties: Burdoin v. The Town of Trenton, Appellant
• Court: Missouri Supreme Court

22 S.W. 728

116 Mo. 358

Burdoin v. The Town of Trenton, Appellant

Supreme Court of Missouri, First Division

June 5, 1893

Appeal from Grundy Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Plaintiff had a judgment in the circuit court, from which defendant appealed.

The instructions referred to in the opinion of the division are the following:

GIVEN FOR PLAINTIFF.

"1. Under the charter and ordinances of defendant, introduced in evidence, it was the duty of defendant to keep its streets and sidewalks in good repair, free from obstruction and safe for travel, in the ordinary modes, by day or by night, and if the jury believe from the evidence that the boards of the sidewalk at the place where plaintiff claims to have been injured in said town of Trenton were absent and gone, and said walk had become in an unsafe condition for travel, and that defendant's officers, whose duty it was to keep sidewalk in repair, knew or might, by the exercise of ordinary care and diligence, have known of the unsafe condition thereof in time to repair the same; that while plaintiff was walking along said walk, where it was so out of repair, and in walking by the side of another person stepped into the hole or excavation made by the absence of such boards or planks in said walk, and that plaintiff was thereby, and by reason thereof, thrown down and into a ditch adjacent thereto, without fault or want of proper care on her part, and she was injured thereby, then the jury must find for the plaintiff, although the jury may further believe from evidence that plaintiff knew that said boards were absent and gone.

"2. If the defendant's mayor or any member of its council or street commissioner knew, or by the exercise of ordinary care and diligence might have known, of the condition of said walk in time to have repaired any defect therein, if any there was, prior to the plaintiff's injury, if she was injured then such notice or knowledge is sufficient to impose upon defendant and its agents and officers the duty to repair the same and if they so knew or might have so known and failed to repair the same, then said agents and officers were negligent and the defendant is responsible for such negligence.

"3. The burden is upon the defendant to prove to the reasonable satisfaction of the jury by the preponderance of the evidence, the defense of contributory negligence set up and pleaded in its answer, and if it has failed to so prove and satisfy the jury, the finding must be for plaintiff on this issue, and although plaintiff may have known of the condition of said walk, the law did not require of her the exercise of extraordinary care in passing and traveling on said walk; but only that she exercise such care and prudence in passing over and upon said walk as an ordinary prudent person would, under like circumstances.

"4. In estimating plaintiff's damage in this case if the jury find for her, they will take into consideration not only the physical injury inflicted, the bodily pain and mental anguish endured, her inability by reason of said injuries to perform her ordinary avocations of life, but may also allow for such damages as it appear from the evidence will reasonably result to her from said injuries in the future not to exceed in all however, the sum of twelve thousand dollars."

GIVEN FOR DEFENDANT.

"1. The court instructs the jury that a municipal corporation is not an insurer against accidents upon its sidewalk, nor is every defect therein, though it may cause an injury actionable. It is sufficient if the sidewalks are kept in a reasonably safe condition for travel thereon in the ordinary modes.

"4. The jury are instructed that municipal corporations, such as the defendant, are only liable for such defects in their sidewalks as are in themselves dangerous or such that a person exercising reasonable care and caution cannot avoid danger in passing over it; and if the jury believe from the evidence that the defect in the sidewalk in question was not in itself dangerous to the safety of the person passing over it with reasonable care and caution, and that the alleged injury was the result either of a mere accident, without negligence of the defendant, or that it resulted from a want of reasonable care and caution on the part of the plaintiff then the jury should find for the defendant.

"7. In determining the question of negligence or carelessness on the part of plaintiff, the jury will take into consideration all the facts and circumstances in proof, including the condition of the sidewalk at the place where the injury is alleged to have occurred, and the knowledge of the plaintiff of the condition of the same, if she had any such knowledge; and if from all the facts and circumstances of the case they believe that negligence or want of ordinary care or prudence on the part of plaintiff directly contributed to the accident which caused the injury sued for, they will find for the defendant.

"8. Although the jury may believe from the evidence that two, or three, or more, planks in the sidewalk in question were loose from the stringers, still, if the jury further believe from the testimony that the sidewalk in question was, at the time of the injury, if any, in a reasonably safe condition for travel in the ordinary modes upon a sidewalk, the jury ought to find for the defendant."

"12. Even though the jury should find for the plaintiff, in estimating her damages they will only take into consideration the result flowing directly from such injuries as they may believe from the evidence plaintiff at the time received; and they will allow her only such damages as they may believe from the evidence she has actually sustained.

"13. The jury are further instructed that the burden of proof is upon the plaintiff and before the jury can find for her she must prove by a preponderance of the evidence to the satisfaction of the jury each of the following facts: First, That she was injured by reason of a defect in the sidewalk in proof; second, That the town authorities had actual notice of the defect or that the defect complained of had existed for such length of time that said authorities could, by the exercise of ordinary diligence, have known of such defect and reasonable time to repair the same; and if she has not so satisfied the jury by a preponderance of the evidence, they will find for the defendant.

"14. The jury are the sole judges of the weight of evidence and of the credibility of the witnesses, and in considering the evidence and the weight to be given to the testimony of the witnesses, the jury will take into consideration the conduct and demeanor of the witnesses while testifying, their apparent candor or lack of candor, their interest or lack of interest in the suit, the fact that they have been contradicted by other witnesses, if such is the fact, the fact that they have made contradictory statements about the matter of which they have testified, if such be the fact, as well as all other facts and circumstances detailed in evidence, and if the jury believe from the evidence that any witness has willfully sworn falsely as to any material fact, then they are at liberty to disregard the whole of the testimony of such witness."

GIVEN BY THE COURT.

"5. Although the jury may believe from the evidence that defendant suffered planks and boards in the sidewalk in question to become and remain loose and detached from the stringers, if the jury believe from the evidence that plaintiff knew of said defective condition of said sidewalk and that so knowing thereof, while walking along and passing over said sidewalk she was [laughing and talking with the party with whom she was walking and] not using reasonable care [or noticing where she was stepping or going], she stepped on said loose boards and planks or into a hole and thereby was thrown into the ditch and injured thereby, then the plaintiff cannot recover in this action and the jury must find for the defendant."

"11. In making up their verdict the jury will wholly disregard all proof of defects in the sidewalk in question except such proof as relates to the defect at the place mentioned in the petition and as shown by the testimony [of the plaintiff] as the place where the injury occurred."

The last two instructions were given by the court without the words included in the brackets, which were contained in the original requests of defendant for the instructions. The court's modifications consisted merely in the erasure of those words.

The other necessary facts appear in the opinion of the division.

Affirmed.

O. M Shanklin and George Hall for appellant.

(1) The first instruction given by the court on the part of the plaintiff is erroneous in this, that it tells the jury that "it was the duty of defendant to keep its streets and sidewalks in good repair, free from obstruction and safe for travel," which requires defendant's walks to be perfectly good and absolutely safe a duty the law does not require of it, but it is its duty to keep its walks in reasonably safe repair and reasonably safe for travel only. Brennan v. St. Louis, 92 Mo. 482; Kling v. City of Kansas, 27 Mo.App. 231; Bassett v. St Joseph, 53 Mo. 290; Kiley v. City of Kansas, 87 Mo. 103; Carrington v. St. Louis, 89 Mo. 208; Maus v. Springfield, 101 Mo. 613; Dillon on Municipal Corporations [3 Ed.], sec. 1019. (2) The instruction is objectionable for the further reason that to entitle plaintiff to recover she was required to use reasonable care in passing over the walk. This omission is not caused by the words, "without fault or want of proper care on her part." See the authorities above cited. Also Loosh v. Des Moines, 38 N.W. 384; Kendall v. Albia, 34 N.W. 833; Halloway v. Lockport, 7 N.Y.S. 363; City v. Dalon, 23 Am. St....