Gerber v. Kansas City

• Decision Date: 07 March 1904
• Citation: 79 S.W. 717,105 Mo. App. 191
• Parties: GERBER v. KANSAS CITY.
• Court: Missouri Court of Appeals

79 S.W. 717

105 Mo. App. 191

GERBER v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

March 7, 1904.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS — OPPORTUNITY TO REPAIR — NOTICE — BARRIERS — SIGNALS — INJURIES — NEGLIGENCE — PETITION — OBJECTIONS AFTER VERDICT — QUESTION FOR JURY — INSTRUCTIONS — PREJUDICIAL ERROR.

1. In an action against a city for injuries on a defective sidewalk, the fact that the city had either actual or constructive notice of the defect at the time the accident happened does not establish negligence per se, and is not sufficient to establish a prima facie case of liability, without proof that the city had such notice a sufficient length of time before the accident happened to afford it a reasonable opportunity to repair, which it had refused to do.

2. Failure of the petition in an action against a city for injuries on a defective sidewalk to allege that the city had notice of the defect for a sufficient length of time to have afforded it an opportunity to make the needed repairs was not a defect which was available after verdict and judgment.

3. In an action against a city for injuries on a defective sidewalk, it was error for the court to fail to charge, as a condition to plaintiff's right to recover, that the city must have had sufficient notice of the defect to have afforded it a reasonable opportunity to have made the needed repairs, and that it had refused to do so, before the accident.

4. In the absence of a city ordinance requiring a city to keep dangerous places in its street guarded or lighted, whether its omission to do so constitutes negligence is a question for the jury.

5. Where no ordinance requiring a city to guard defective places was introduced in evidence, and there was nothing in the petition or evidence charging negligence for defendant's failure to guard the place where plaintiff was injured, an instruction authorizing a recovery in case defendant was guilty of negligence in failing to erect barriers or signals to warn persons of dangerous places in its streets was erroneous.

6. In the absence of a satisfactory showing that error is harmless, it will be presumed to be prejudicial to the party against whom it is committed.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Bertha Gerber against Kansas City. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. J. Ingraham and L. E. Durham, for appellant. Alden & McFadden, Fyke Bros., and Snider & Richardson, for respondent.

SMITH, P. J.

This is an action which was brought to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The plaintiff had judgment in the court below, and defendant appealed.

The defendant assails the judgment on the ground that the petition fails to state facts sufficient to constitute a cause of action. The negligence upon which plaintiff bases her right to recover is alleged in the fifth paragraph of that pleading in this way, viz., that "defendant neglected its duty in this regard, and negligently permitted said sidewalk * * * to become and remain out of repair, and permitted some of the boards or planks of which said sidewalk was constructed to become and remain displaced, rotten, and broken, so that holes existed in said sidewalk to such an extent that it became unsafe at said place for ordinary travel, to such an extent as to endanger life and limb, and that defendant negligently permitted said sidewalk at said place to remain in such unsafe and dangerous condition, by...