Holman v. City of Macon

• Citation: 177 S.W. 1078
• Decision Date: 24 May 1915
• Docket Number: No. 11492.,11492.
• Parties: HOLMAN v. CITY OF MACON.
• Court: Court of Appeal of Missouri (US)

177 S.W. 1078

HOLMAN v. CITY OF MACON.

No. 11492.

Kansas City Court of Appeals, Missouri.

May 24, 1915.

On Motion for Rehearing, June 14, 1915.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

"Not to be officially reported."

Action by Margaret Holman against the City of Macon. Judgment for plaintiff, and defendant appeals. Affirmed.

Andrew Field, G. N. Davis, and D. L. Dempsey, all of Macon, for appellant. Ed. S. Jones and Lacy & Shelton, all of Macon, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury caused by a fall at a crossing of defendant's streets. Her action is bottomed on alleged negligence of defendant in maintenance of the crossing. She recovered judgment in the trial court.

Plaintiff had stayed all night with her sick married daughter the 5th of November, 1912. She left before daylight next morning, and on her way home she attempted to pass over the crossing at the intersection of Weed and Wentz streets. There had been a flagstone crossing, but it had gotten out of repair, and was in part covered with dirt thrown over it from grading the s.:reet. The flagstone did not connect with the sidewalk, and the space between was several feet, and it was in that space plaintiff fell and hurt herself severely. The walk was about eight inches above the dirt. At this point a depression had been worn or washed out to a depth of from six to eight inches and five or six feet in extent; and after rains this was filled with water. It was not convenient to go around this depression (some of the witnesses called it a hole). There had been a lot of brick piled by the hole, and several were in it. It is difficult to describe the exact location of the brick and the hole with reference to the sidewalk, and we think it not material. Plaintiff stepped down off the sidewalk and took one further step, when her foot rested upon "something loose that slipped back" with her, and she fell into the hole. We do not consider it necessary to go further into the evidence as to her injury and the cause of it, for the reason that an examination of the evidence shows there was ample upon which to base a verdict that the city was negligent, and that plaintiff was not.

There was evidence tending to show the chairman of the street committee had notice of the unsafe condition of the crossing for several weeks prior to plaintiff's injury. The court gave plaintiff's first instruction, in which the jury were informed of defendant's duty to keep the crossing in repair, and that if they believed "that the defendant knew, or by the exercise of ordinary care could have known, of such condition in time to have repaired the same," etc. Defendant has objected to this instruction on the ground that, instead of saying "in time to have repaired," it should have read "in time reasonably sufficient to have repaired the same," or in some other way have qualified the words "in time" with reasonable time. Plaintiff concedes that a reasonable time for repair after knowledge of defect must be allowed, and that in stating the law, decisions and text-books make use of such expression. But she insists instructions and statements of the law are not required to be in identical language; that the meaning of words properly expressing the law may be conveyed by other appropriate words in an instruction. So plaintiff claims that when a jury is told that a city must have knowledge of a defect in time to repair, no other meaning could be given by commonsense men to such expression than that it should be a reasonable time. Defendant seems to have had the same view, for it took the same course, and in instructions Nos. 8 and 15 it omits any reference to the time for repairs being reasonable. So if plaintiff's instruction be erroneous, it was adopted by defendant, and it cannot now complain. Stevens v. Crane, 116 Mo. 408, 22 S. W. 783; Bridge Co. v. Brewing Ass'n, 129 Mo. 343, 354, 31 S. W. 765; Davis v. Brown, 67 Mo. 313; Crutchfield v. Railway Co., 64 Mo. 255, 257; McGonigle v. Daugherty, 71 Mo. 259, 266; Fairbanks v. Long, 91 Mo. 628, 633, 4 S. W. 499.

The court gave eight instructions for the defendant and refused six and gave one after modifying it. We have examined these, and find that everything proper in those refused was embodied in those given. It is perfectly manifest that those given for defendant embrace every reasonable suggestion and caution to the jury which could be written within legal limits. In considering the action of the court in passing on the instructions, plaintiff's situation should be kept in mind. It is true she knew of the defective crossing; but it was not such absolutely dangerous defect as to make her attempt her certain injury. She may reasonably have supposed that she could get over by being careful. The time she crossed (so early in the morning) was not wholly her own selection. She had spent the night with the sick, and was returning to her duties at her own home, and there certainly is no room to say the jury did not fully understand the issues in the case. We must...