O'Donnell v. City of Hannibal
| Citation | 128 S.W. 819,144 Mo.App. 155 |
| Parties | MARY O'DONNELL, Respondent, v. CITY OF HANNIBAL, Appellant |
| Decision Date | 16 May 1910 |
| Court | Court of Appeals of Kansas |
Appeal from Randolph Circuit Court.--Hon. Alex. H. Waller, Judge.
AFFIRMED.
Judgment affirmed.
Berryman Henwood and Willard S. Cave for appellant.
(1) Every defect or imperfection in the streets or sidewalks of a city is not actionable, nor is the city a warrantor of the safety of its streets or sidewalks, or an insurer against accidents thereon. Craig v. Sedalia, 63 Mo. 417; Brown v. Glasgow, 57 Mo. 156; Russell v Columbia, 74 Mo. 480. (2) A defect to put the city on notice must be open, obvious and palpable; proof of hidden or latent defects, which would not attract or arrest ordinary attention, is not sufficient. Dillon's Mun. Corps., sec 1026.
J. W Hays, C. T. Hays and M. J. Lilly for respondent.
A traveler on a sidewalk is not bound to keep his eyes constantly fixed on it in search of possible defects and if his attention is temporarily diverted to look aside, or for any other purpose, he is not as a matter of law guilty of contributory negligence. Lattimore v. Electric Light Co., 128 Mo.App. 37; McCormick v. City of Monroe, 64 Mo.App. 197; Barr v. Kansas City, 105 Mo. 550; Coffee v. Carthage, 186 Mo. 573; Webb v. Heintz, 97 P. Rep. 753; Taylor v. Springfield, 61 Mo.App. 263.
Plaintiff, a woman sixty-five years of age, sued the city of Hannibal, a municipal corporation, to recover damages for personal injuries alleged to have been caused by the negligence of defendant in maintaining a public sidewalk in a defective condition for travel. A trial of the issues resulted in a verdict and judgment for plaintiff in the sum of two thousand dollars. Defendant appealed and contends in argument, first, that the jury should have been directed by the court to return a verdict for defendant; second, that error was committed in the rulings on the instructions and, third, that the verdict was excessive.
The injury occurred about nine o'clock p. m. February 17, 1907, on Sixth street, a public thoroughfare, the general course of which is north and south. Plaintiff and her granddaughter, returning from church, were walking north on the granitoid sidewalk on the west side of the street. She was not in the habit of using that sidewalk in going to and from church as it was not the most direct way, but on this occasion, the weather being pleasant, she chose the longer way. No street lamps were burning; the moon was shining, but it was low in the west and the sidewalk lay in the shadow of buildings. Plaintiff was not inattentive to the sidewalk, but was conversing with her granddaughter who walked a few steps in advance of her. While thus proceeding, plaintiff tripped on the hinge of a cellar door in the sidewalk in front of a confectionery store, and fell heavily forward, sustaining the injuries of which she complains. The sidewalk was nine feet wide and the opening to the cellar from the street extended five feet into the sidewalk. The opening was covered with two wooden doors which opened from each other. They were attached to the granitoid walk by means of ordinary farm gate hinges. The doorway was much used by the occupants of the store and the evidence of plaintiff tends to show that one of the hinges had become loosened to the extent that it was raised above the surface of the doors and walk some two or three inches; that in stepping over this place, plaintiff's toe caught under the hinge and was held there during and after her fall and until removed by her companion, and that the defect had existed a sufficient time and was so obvious to ordinary inspection as to warrant the inference that defendant had actual or constructive knowledge of its existence in time to have repaired it, had reasonable care been exercised.
These facts are collected from the evidence most favorable to plaintiff. All of them of an accusatory character are strongly contested by the evidence of defendant, but in passing on the demurrer to the evidence, it is our duty to consider the essential facts and circumstances of the case from the viewpoint of plaintiff's evidence, and from this position, we have no hesitancy in saying that the inference is fair and reasonable that negligence of defendant was the proximate cause of the injury.
We recognize as sound the rules of law invoked by defendant. In cases of this character, negligence is the ground of liability; the city is not an insurer against accidents (Dillon on Municipal Corporations, section 1019), and ...
To continue reading
Request your trial