Fath v. City of Cape Girardeau

• Decision Date: 05 April 1938
• Docket Number: No. 24455.,24455.
• Parties: FATH v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Court of Appeals

115 S.W.2d 75

FATH v. CITY OF CAPE GIRARDEAU.

No. 24455.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Appeal from Cape Girardeau Court of Common Pleas; L. L. Bowman, Judge.

"Not to be published in State Reports."

Action by Machdelina Fath against the City of Cape Girardeau for injuries sustained when plaintiff fell in a hole in a sidewalk. Judgment for plaintiff for $1,400, and defendant appeals.

Reversed and remanded.

R. P. Smith, of Cape Girardeau, for appellant.

Oscar A. Knehans and Jack O. Knehans, both of Cape Girardeau, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff as the result of a fall on a sidewalk in the City of Cape Girardeau.

Plaintiff alleges in her petition that on or about January 17, 1936, about 9 o'clock in the evening, she was walking on a concrete sidewalk on the east side of South Spanish street, and stepped into a hole or broken place in the sidewalk, which caused her to fall and sustain the injuries for which she sues.

The answer of defendant denies generally the allegations of plaintiff's petition, and by way of an affirmative defense alleges that plaintiff was in the habit of traveling over the sidewalk described in the petition regularly and frequently by daytime and nighttime, and was well aware of the condition of the sidewalk, and that she failed to keep a vigilant watch for the hole or broken place in the sidewalk, and failed to walk carefully on said sidewalk, so as to avoid stepping into said hole or broken place in said sidewalk, and that her negligence in this respect contributed directly to her injuries.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $1,400, and defendant appeals.

The testimony shows that there was a hole or broken place in the walk where plaintiff fell, which had existed for several years. One of the witnesses testified that the hole was about two and one-half feet long, one-half foot wide, and about six inches deep. Another witness testified that the hole was not very deep, that it did not go all the way through the sidewalk, and that it was rough as if the top layer of concrete had been clipped off leaving the rough material underneath. Another witness testified that it was a large hole, and that in his opinion it was about three or four inches deep. Plaintiff testified that it was a big hole in the middle of the sidewalk, eight or ten inches across, and two and one-half inches deep.

The testimony shows that the street was dark at the time of the accident, and one of the witnesses testified that it was so dark that she could not see the hole where plaintiff fell.

Plaintiff testified that at the time she fell she was walking with her daughter and a friend, one on each side of her; that she had been over the sidewalk several times before and had seen the hole in the sidewalk; that she had seen that particular hole several times before that, and that she was watching for it as she was walking over the sidewalk that night; that she had passed this broken place in the sidewalk four or five times; that on the night she fell she looked down and looked in front like all people, and was looking that way right at the point where she fell; that all at once she hit the broken sidewalk; that she must have hit that particular place and her ankle went over, and she went down in the hole.

The fall resulted in a fracture of the malleolus of the small bone of the left leg.

Plaintiff was sixty-four years old at the time of her injury, and weighed 187 pounds.

Defendant assigns error here upon the giving of plaintiff's instruction No. 4, which told the jury that the defendant was bound by law to use all reasonable care, caution, and supervision to keep its streets and sidewalks in a safe condition for travel, in the ordinary modes of traveling, by night as well as by day. This instruction is not in accord with the law as declared by the decisions of our courts. The law is set forth in an instruction which had the express approval of our Supreme Court in Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938, 940, as follows: "The court instructs the jury that the City of Brookfield is not an insurer of the safety of pedestrian traveling along or over its sidewalks, and is required to exercise ordinary care only to keep its sidewalks in a reasonably safe condition."

So, also, in King v. City of De Soto, 89 S.W.2d 579, 583, this court, approving an instruction which told the jury that it was the duty of the defendant city to exercise ordinary care to keep its streets in a reasonably safe condition for the traveling public, said: "We are of the opinion that the instruction complained of correctly declared the law applicable to the facts in evidence for it has long been the law of this state that a city is bound to exercise ordinary care to keep its streets in a condition of reasonable safety by night as well as by day."

See, also, to the same effect, Francis v. City of West Plains, 203 Mo.App. 249, 216 S.W. 808; Starkey v. City of Greenville, 189 Mo.App. 352, 175 S.W. 314; Jackson v. Kansas City, 181 Mo.App. 178, 167 S.W. 1150; Wallis v. City of Westport, 82 Mo. App. 522; Smith v. City of Brunswick, 61 Mo.App. 578.

Defendant assigns further error upon the giving of plaintiff's instruction No. 6, which told the jury that although plaintiff by the exercise of ordinary care could have discovered the hole in the sidewalk and that it was unsafe and dangerous, in time to have prevented stepping therein, yet that was not sufficient to defeat a recovery unless she failed to exercise ordinary care and prudence in passing over said walk.

We think this instruction is erroneous under the facts in this case. Plaintiff testified that she had previous knowledge of the hole in the sidewalk when she fell....