Forster v. Kansas City
| Decision Date | 16 January 1911 |
| Citation | 133 S.W. 662,153 Mo.App. 504 |
| Parties | MARIE FORSTER, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Herman Brumback, Judge.
AFFIRMED.
Judgment affirmed.
John G Park, James W. Garner, Ingraham D. Hook and A. F. Smith for appellant.
(1) There was not sufficient proof of negligence to support a verdict; if there was plaintiff was herself negligent. (2) The court erred in giving plaintiff's first instruction. Said instruction erroneously imposed the absolute duty upon the city to keep said sidewalk reasonably safe. Dunn v Nicholson, 117 Mo.App. 374. Said instruction erroneously told the jury that the plaintiff could blindly rely on defendant's duty to keep said sidewalk safe. Coffey v. Carthage, 186 Mo. 573; Grout v. Central, etc Co., 125 Mo.App. 552; Schaub v. Railroad, 133 Mo.App. 444; Diamond v. Kansas City, 120 Mo.App. 185. Said instruction permitted a recovery for defects not resulting from negligence. (3) The court erred in refusing to give defendant's instructions properly submitting the issue of contributory negligence. (4) The court improperly submitted the issues as to plaintiff's injuries. A finding as to part of said claimed injuries was based on conjecture. Byerly v. Consolidated, etc., Co., 130 Mo.App. 593; Smart v. Kansas City, 91 Mo.App. 586. The court refused to give instructions more fairly submitting those issues. (5) The plaintiff offered certain evidence incompetent unless subsequently connected by other evidence, and failed to offer such other evidence. Smith v. Sedalia, 182 Mo. 1. (6) The court erroneously admitted evidence of subsequent repairs, and of conclusions as to insufficient light.
Bird & Pope for respondent.
This action is for personal injury received by plaintiff in falling upon one of the sidewalks in the streets of Kansas City, which is charged to have been negligently kept in an unsafe and dangerous condition. The judgment in the trial court was for the plaintiff.
Since the verdict was for the plaintiff, we will assume the facts of the case to be as the evidence in her behalf tends to prove them. It appears that she was walking eastwardly, along Twelfth street, after dark, where it was being repaired. That cobble stones were piled three or four feet inside the curb separating the walk from the street proper, but leaving ample walking space of from four to five feet wide. The walk was constructed of granitoid blocks in hexagon shape, and many of these were broken so as to leave a somewhat uneven surface. That just east of the door of a restaurant there was a hole or depression in the walk from four to six inches in depth. She stepped into this depression and caught the toe of her shoe under one of the broken blocks, which caused her to fall violently, first striking her knees, and then full length.
Allowing credit to the evidence in her behalf, she received injuries of a painful and distressing character, so much so that there can be no reasonable objection made to the amount of the verdict.
We have gone over the evidence and find it was ample to justify the court in overruling defendant's demurrer thereto. It is only by leaving out of consideration much of what was testified to in her behalf that any ground can be found to support the insistence that a case was not made for the determination of the jury; and we pass to the instruction to which objection has been made. Number one, as claimed by defendant, does submit, in its first words, a degree of care of the city's streets, much higher than is justified by the law. Its wording, considering that part of it alone, put an absolute duty on defendant to keep its streets and walks reasonably safe; the word "absolute" was not used but that is the effect of the words which are used; whereas the duty is to make a reasonable effort to keep them reasonably safe. [Howard v. New Madrid, 127 S.W. 630; Dunn v. Nicholson, 117 Mo.App. 374, 93 S.W. 869.] This is recognized as the law in Garard v. Coal Co., 207 Mo. 242, 105 S.W. 767; but in that case, the objectionable degree of care stated on the part of the coal company was followed by a specific statement of what the...
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