Cassaday v. Kansas City

• Decision Date: 18 June 1906
• Citation: 119 Mo. App. 116,95 S.W. 948
• Parties: CASSADAY v. KANSAS CITY.
• Court: Missouri Court of Appeals

95 S.W. 948

119 Mo. App. 116

CASSADAY v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

Rehearing Denied July 2, 1906.

MUNICIPAL CORPORATIONS — PERSONAL INJURIES —DEFECTIVE SIDEWALK—EVIDNCE.

The rule that a pedestrian on a public street has no right to assume that the walk is reasonably safe for travel, when he in fact knows of a defective place therein, did not apply where plaintiff, while knowing of a loose paving block in the sidewalk, did not know that there was a hole thereunder into which the block would tip or turn and let him down.

Appeal from Circuit Court, Jackson. County; J. H. Slover, Judge.

Action by Minnie A. Cassady against Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

Edwin C. Meservey and W. H. H. Piatt, for appellant. E. W. Shannon, for respondent.

ELLISON, J.

Plaintiff received injury to her leg by stepping into a hole on one of defendant's sidewalks. She recovered judgment therefor in the circuit court. It appears that the sidewalk at the place in question was paved with artificial stone blocks; that in excavating near the walk and partly under it, around a meter, the city left a hole filled with frozen lumps of dirt. One of these paving blocks, and perhaps half of another, were placed over the dirt or partly over it. When the dirt melted and settled down, it left a hole under the walk. The block was noticed to be loose, though the hole under it was not easily observed. Plaintiff in passing over the walk stepped on this block, when it tipped and let her leg into the hole inflicting the injuries of which complaint is made.

The court instructed the jury on plaintiff's right to assume that the walk was reasonably safe for travel. The point is made against such instruction, not that it is erroneous in a proper case, but that it is wrong in this case from the fact, as defendant insists, that plaintiff knew the defective place; and that she had no right to have the jury told of her right to presume a condition to exist when she knew to the contrary. That is a true statement of law. Brannock v. Elmore, 114 Mo. 64, 65, 21 S. W. 451. That, as stated by Judge Burgess in Perrette v. Kansas City, 162 Mo. 249, 62 S. W. 450, "would be the indulgence of a presumption over an absolute fact and is illogical." But in this case the plaintiff, while admitting she had noticed the place—that is, the loose block—did not know of the hole under it, and into which it could tip or turn and let her down....