Hitt v. Kansas City

• Decision Date: 27 February 1905
• Citation: 85 S.W. 669,110 Mo. App. 713
• Parties: HITT v. KANSAS CITY.
• Court: Missouri Court of Appeals

85 S.W. 669

110 Mo. App. 713

HITT v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

February 27, 1905.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALK — INJURY TO PEDESTRIAN — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — DAMAGES — AMOUNT.

1. Where a defect in a sidewalk had existed for nearly two years, the law would presume that the city not only had notice, but a sufficient time to repair.

2. In an action against a city for injuries to a pedestrian, owing to a defective sidewalk, the question of contributory negligence held one for the jury.

3. In an action against a city for injuries to a pedestrian, in the nighttime, owing to a defective sidewalk, the fact that the place was well lighted was no evidence, of itself, unsupported by any other fact, showing negligence on her part; she having a right to presume that the sidewalk was safe.

4. Erroneous instructions are harmless where the findings on the issue to which they relate were for the right party.

5. There is no error in refusing an instruction, the substance of which is contained in one given.

6. In an action for personal injuries, where the evidence as to the extent thereof is conflicting, the amount of the damages is for the jury, and not for the court on appeal.

7. An appeal will not be dismissed because the affidavit stated, "The affidavit prayed for by defendant;" using the word "affidavit" instead of the word "appeal."

Appeal from Circuit Court, Johnson County; W. L. Jarrott, Judge.

Action by Phœbe M. Hitt against the city of Kansas City. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. J. Ingraham and James W. Garner, for appellant. Hardin & Taylor, for respondent.

BROADDUS, P. J.

This suit was begun in the circuit court of Jackson county, but was taken on change of venue to Johnson county. The facts on plaintiff's side were: That plaintiff, while walking over a sidewalk of defendant city in March, 1902, at night, in the company of her two daughters, fell, and was severely injured. The sidewalk in question was on the west side of and adjoining what is known as "Convention Hall." That while she was passing along said walk she stepped into a hole, which caused her to fall. It was shown that she was unacquainted with said sidewalk, and that she was going along in the ordinary manner. Plaintiff's evidence was to the effect that said sidewalk was in an unsafe condition, by reason of depressions and holes in the same. She testified that her foot became fastened in a hole, and it had to be pulled out after she fell, and that she fell forward on her knees, at which time her two daughters, who were with her, were walking on each side of and supporting her. She is corroborated in her statement as to how she received her injury by Mrs. Taylor, one of the daughters so with her. The other daughter is since deceased. Defendant's evidence was to the effect that the walk was composed of concrete, with a top layer of asphaltum; that it was in reasonably safe condition; that there were some depressions of a saucer or dish shape; that the sides of the depressions gradually sloped toward the center; and that there were no abrupt or broken edges to those depressions. It is conceded that, whatever the condition of said walk, it was the result of heat from the fire which destroyed said hall in the month of April, 1900, except that there was some evidence that steel beams from the burned building fell with their ends against the walk, making holes in the same. It is not denied that, whatever its conditon may have been, the defendant had notice of it. The trial resulted in a verdict for the plaintiff for $5,000, of which sum she entered a remittitur of $500, whereupon judgment was rendered in her favor for $4,500, from which defendant appealed.

Objection is made to plaintiff's instruction No. 1 for the reason that it does not require the jury to find that a sufficient time had elapsed after notice of the defects in the walk for the defendant to have repaired the same. A similar instruction was held to be error in Baker v. Independence (Mo. App.) 81 S. W. 501; Gerber v. Kansas City, 105 Mo. App. 191, 79 S. W. 717; Richardson v. City of Marceline, 73 Mo. App. 360; Maus v. Springfield, 101 Mo. 613, 14 S. W. 630, 20 Am. St. Rep. 634. There are numerous other cases in this state to the same effect. It may be conceded that in all cases where it is a question as to whether a city has had a reasonable time within which to remedy a defect in its street after notice of such defect — to repair the same before an injury resulting therefrom — an instruction like the one in question would be defective. But where the defect has existed for a long time, the law presumes knowledge upon the part of the city, and that it has had reasonable time within which to remedy such defect. In Small v. Kansas City (decided by the Supreme Court, but not yet officially reported) 84 S. W. 901, it is held that an instruction like the one in question, under a similar state of facts, was proper. In that case the defect had existed for over a year, and the city's inspector had known of it for more than three months, before the accident. The language of the court is: "There is no room in this case, therefore, for the application of the doctrine that the city must not only have actual or constructive notice of the defect in the sidewalk, but must also have a reasonable time within which to repair it." In this case the defect had existed for nearly two years. In such cases the law will presume that defendant had not only notice of the defect in the sidewalk, but also that it had sufficient length of time in which to repair it.

Instructions Nos. 2 and 5 told the jury that plaintiff had the right to assume that the walk in question was in a reasonably safe condition for the use of the public. These instructions are criticised on the ground that the street was well lighted, and that plaintiff could have discovered any defect, if it existed, had she exercised her senses while passing over it. There can be no denial but what the instructions...