Emma R. St. Louis v. Kansas City
| Decision Date | 27 February 1905 |
| Citation | 85 S.W. 630,110 Mo.App. 653 |
| Parties | EMMA R. ST. LOUIS, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
R. J Ingraham, City Counselor, and L. E. Durham for appellant.
(1) That portion of instruction numbered 1, given for respondent whereby the jury was told that the city was bound in law to "securely" and "safely" bind the different sections of the sidewalk together, so that it would be safe, was erroneous. It required absolute unqualified safety. The city is only bound to keep its sidewalks reasonably safe. Smith v. Brunswick, 61 Mo.App. 578; Wallis v. Westport, 82 Mo.App. 522; Nixon v Railroad, 141 Mo. 438; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 325. (2) It was in conflict with other instructions on that point, and no one can tell which the jury followed. Wallis v. Westport, 82 Mo.App. 522; Linn v. Bridge Co., 78 Mo.App. 111; Shoe Co. v. Lisman, 85 Mo.App. 340. (3) Further on in the instruction the court erred in not limiting the recovery to negligence charged in the petition. It warranted a recovery for any negligence. Ely v. Railroad, 77 Mo. 34; Chitty v. Railroad, 148 Mo. 64; Haynes v. Trenton, 108 Mo. 123; Gerber v. Kansas City, 105 Mo.App. 191, ___ S.W. ___; Kenney v. Railroad, 76 Mo. 254. (4) The instruction refers to "severe contusions, abrasions and concussions" received by respondent. This was error, as the evidence fails to show any of these things. It is error to refer to injuries the evidence does not support. Brake v. Kansas City, 100 Mo.App. 611; Memmerberg v. Railroad, 62 Mo.App. 658; Rhodes v. Nevada, 47 Mo.App. 499; Evans v. Joplin, 76 Mo.App. 20; Smith v. Railroad, 48 Mo. 367.
E. E. Hairgrove and J. M. Cole for respondent, filed lengthy argument.
Plaintiff, claiming to have been seriously injured on one of defendant's sidewalks, brought this action for damages and prevailed in the trial court.
There was evidence tending to show that she fell from a defective sidewalk, while passing over it, in the exercise of ordinary care. The evidence further tended to show that plaintiff suffered severe and permanent injury on account of the fall. In our opinion the case made by the plaintiff justified the trial court in submitting it to the jury.
But there are several serious objections to instructions given at the instance of plaintiff. Instruction numbered one in express terms made it necessary that the sections of the sidewalk should be so "securely and safely bound together that they would be safe" for persons using the walk with reasonable caution and care. In instruction numbered three the jury were told, "that if you believe from the evidence that said sidewalk was defective and in a dangerous and unsafe condition for public use as described in plaintiff's first instruction," etc. The defendant by the first of these instructions was required to have the sidewalk in such condition that it would be unqualifiedly safe for pedestrians, and this was emphasized by the wording of the other with its reference to the first. They should not have been given in such form. They exact a higher duty of defendant than does the law. If the city keeps its walk in a reasonably safe condition it has discharged its duty. [Wallis v. Westport, 82 Mo.App. 522; Baustian v. Young, 152 Mo. 317, 325, 53 S.W. 921; Carvin v. St. Louis, 151 Mo. 334, 52 S.W. 210; Nixon v. Railroad, 141 Mo. 425, 42 S.W. 942; Smith v. Brunswick, 61 Mo.App. 578.]
It is suggested that while the instructions may be faulty in the respect mentioned, yet they are cured by others given in the case, especially in view of what plaintiff considers the great preponderance of the evidence as to the condition of the walk. We do not think so. In our opinion the plaintiff's instructions tended to exaggerate the conditions against the city to such a degree as to demand a new trial.
The further error appears in the instruction in referring to character of injuries which plaintiff did not receive. It frequently happens that there is more set out in a petition describing the injury than the evidence subsequently substantiates. Therefore, while the instruction should not in any case, go beyond the petition, it should not go so far as the petition unless the evidence has given support to the allegations therein. The juries of the country have never been accused of parsimony in measuring damages against a city and it is,...
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