Fairall v. City of Cameron

• Decision Date: 01 December 1902
• Citation: 97 Mo. App. 1,70 S.W. 929
• Parties: FAIRALL et al. v. CITY OF CAMERON.
• Court: Missouri Court of Appeals

70 S.W. 929

97 Mo. App. 1

FAIRALL et al. v. CITY OF CAMERON.

Court of Appeals at Kansas City, Missouri.

December 1, 1902.

DEFECTIVE SIDEWALKS — NEGLIGENCE — PLEADING — INSTRUCTIONS.

1. A petition in an action against a city for injury from a defective sidewalk, though it does not allege negligence or that the sidewalk was not reasonably safe for travel, where the facts alleged show negligence, is not insufficient, but defective only, which defect is waived by going to trial without objection.

2. That the petition in an action against a city for injury from a defective sidewalk erroneously states the defendant's duty to be to provide "safe," instead of "reasonably safe," sidewalks, does not make it bad.

3. Fault of an instruction in omitting to state that, if a sidewalk was defective, the city, to be liable, must have had notice thereof such a reasonable time as to have enabled it to make repairs, is cured by such statement in other instructions.

4. Statement in an instruction that it was the duty of defendant city to keep its sidewalks in a "proper state of repair" for travelers, and if they find the sidewalk was in an "unsafe condition," etc., is rendered harmless by an instruction that not every defect in a sidewalk is ground of liability, though it may cause an injury, but defendant performs its full duty if the sidewalks are kept reasonably safe for travelers using ordinary care, and, if the sidewalk was in a reasonably safe condition, plaintiff could not recover.

Appeal from circuit court, Clinton county; Alonzo D. Burnes, Judge.

Action by Mollie B. Fairall and another against the city of Cameron. Judgment for plaintiffs. Defendant appeals. Affirmed.

This is a suit against the city of Cameron, Mo., to recover damages resulting from an alleged injury to plaintiff Mollie B. Fairall, caused by a fall on a sidewalk alleged to have been defective. The plaintiff's evidence tended to show that in the month of December, 1900, while she was passing over a sidewalk on Harris street, in said city, in company with two other women, a board in the walk was stepped on by one of her companions in such a manner that it tilted up and tripped this plaintiff, throwing her down and injuring her, and that said sidewalk had been in a bad condition long prior thereto by reason of the rotten condition of the boards and stringers composing the same. There was a trial before a jury, which resulted in a verdict for the plaintiffs in the sum of $760, upon which judgment was rendered. The defendant has appealed.

Jno. A. Livingstone, Wm. Henry, and James E. Goodrich, for appellant. Crosby Johnson & Son and Frank B. Ellis, for respondents.

BROADDUS, J. (after stating the facts).

One of the grounds assigned for a reversal is that the petition does not state a cause of action, in this: that it does not state that the sidewalk in question was defective or out of repair through the negligence of the defendant. The petition, after alleging it was the duty of the defendant to keep its streets and sidewalks in good and safe condition for the passage of travelers, proceeds to allege that the sidewalk on Harris street, where plaintiff was injured, was made of wooden stringers, with boards laid crosswise on them, and had become old and rotten; that the boards had come loose from the stringers because the nails were old, rusted, and broken, and from various other alleged defects, so that when stepped upon they were liable to tip up; that in December, 1900, the plaintiff Mollie B. Fairall, in company with two others, while walking along said sidewalk, unaware of the danger of using the same, was thrown down by reason of one of the boards tilting up under the foot of one of her companions and catching her foot while she was in the act of stepping over a hole in said walk made by the absence of two boards therein; that said defects had existed for a long time prior to her injury, and were known, or should have been known, by the defendant, in the exercise of reasonable care; and that she was seriously injured by the fall.

The petition, which is founded upon a cause of action against defendant city for negligence for a failure to keep its sidewalks in a reasonably safe condition for persons using them, is remarkable for a failure to use the word "negligence." It in no instance charges that the acts complained of were acts of negligence, nor does it charge that the sidewalk in question was not reasonably safe for travel. The defendant's counsel seem to think that these omissions constitute a fatal defect in the pleading. It is usual in cases of this kind to allege that the acts of omission or commission were the result of negligence, but we are not prepared to say that for the absence of such averments the pleading is fatally defective. There is no doubt but what the omission of duty on the part of the defendant as alleged in the petition was negligence. The law characterizes such conduct as negligence. It was not indispensable that the pleader should charge that the defendant was negligent in omitting to perform a duty it owed to the traveling public, if the acts of themselves constituted negligence. And if such acts did not amount to acts of negligence, a charge that they were negligent acts would not strengthen their force. Section 592, Rev. St. 1899, prescribes in a general way the form for a petition, viz.: "First, the title of the cause * * *; second, a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; third, a demand of the relief to which the plaintiff may...