Horan v. City of Independence

Citation176 S.W. 1061
Decision Date24 May 1915
Docket NumberNo. 11583.,11583.
PartiesHORAN v. CITY OF INDEPENDENCE.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

"Not to be officially reported."

Action by Minnie Horan against the City of Independence. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Allen C. Southern, of, Independence, for appellant. L. T. Dryden, of Independence, for respondent.

ELLISON, P. J.

This action is for personal injury alleged to have resulted from a fall on one of defendant's walks or street crossings. The judgment in the trial court was for the plaintiff.

It appears that at the intersection of Osage and Farmers streets in defendant city there was a drain ditch about two feet deep, and that defendant had a crossing constructed over it. This crossing was composed of substantial oak planks 2 inches thick, 10 inches wide, and 10 feet long. Its full width was 4 feet. One end connected with the sidewalk, and the other extended across the ditch 10 feet out into the street. All of the end next to the sidewalk was not resting on solid earth, for at the east corner the earth had worn away to a depth variously estimated at from 2 to 6 inches. Since we must be governed by the evidence in plaintiff's behalf, we will say it was the latter depth. This caused the end to "wobble," or be unsteady when stepped upon. Plaintiff of her way home, which was close by, stepped off of the sidewalk proper onto this end of tie crossing, slipped and fell, injuring herself painfully.

We have concluded, not without some hesitation, that a case was made for the jury by the testimony in plaintiff's behalf. We are also not inclined to adopt defendant's theory of escape by reason of this crossing being a general plan of construction.

But an error in plaintiff's first instruction requires the reversal of the judgment. The well understood and often stated rule under which negligence of a city is ascertained is to require a finding by the jury that the city has not kept its walk in a reasonably safe condition for travel in the ordinary mode by persons exercising ordinary care. Salmon v. Trenton, 21 Mo. App. 182, 186; Smith v. Brunswick, 61 Mo. App. 578, 580; St. Louis v. Kansas City, 110 Mo. App. 653, 655, 85 S. W. 630; Barnes v. St. Joseph, 151 Mo. App. 528, 132 S. W. 318. The instruction departs from this usual direction and submits whether the crossing "was in an unsafe, dangerous, and defective condition."...

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