Howard v. City of New Madrid

• Decision Date: 19 April 1910
• Citation: 148 Mo. App. 57,127 S.W. 630
• Parties: HOWARD v. CITY OF NEW MADRID.
• Court: Missouri Court of Appeals

127 S.W. 630

148 Mo. App. 57

HOWARD v. CITY OF NEW MADRID.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

1. MUNICIPAL CORPORATIONS (§ 805) — CARE OF SIDEWALKS — DUTY OF PEDESTRIANS.

A person using a city sidewalk cannot presume that the city has done its duty in keeping the sidewalk in repair, when she knows it is in bad condition.

2. MUNICIPAL CORPORATIONS (§ 763) — CARE OF SIDEWALKS.

A city is not bound, at all hazards, to keep its sidewalks in safe condition for travel, but is only bound to use ordinary care to keep them in a reasonably safe condition for travel by day and night.

3. APPEAL AND ERROR (§ 1064) — REVIEW — HARMLESS ERROR — INSTRUCTIONS.

Where it was conceded that a sidewalk, upon which plaintiff was injured, was out of repair and had been for months, the condition being known by everybody, so that the city had failed in its duty to keep the sidewalk in repair, instructions overstating the degree of care required of a city in such respect were harmless error.

4. APPEAL AND ERROR (§ 1064) — REVIEW — HARMLESS ERROR — INSTRUCTIONS.

In an action against a city for injuries from a defective sidewalk, a charge that plaintiff might presume that the city's duty had been performed by it, and that the sidewalk was in a safe condition for use, was not prejudicial error where there was no evidence tending to show plaintiff's contributory negligence.

5. MUNICIPAL CORPORATIONS (§ 805) — INJURIES FROM DEFECTIVE SIDEWALKS — CONTRIBUTORY NEGLIGENCE.

It is not negligence for a person to use a sidewalk which he knows to be in bad repair, unless it is so unsafe that no person of ordinary prudence would attempt to walk over it.

6. DAMAGES (§ 130) — EXCESSIVENESS — PERSONAL INJURIES.

Plaintiff, a school teacher, sustained a contusion of the lower third of the tibia from a defective sidewalk, causing considerable pain and injuring the nerves. At the time of trial, nearly two years afterward, she was still suffering from the injury, and had been disabled from pursuing her vocation for nearly a year. Held, that a recovery of $2,000 was not excessive.

Appeal from Circuit Court, Ste. Genevieve County; Chas. A. Killian, Judge.

Action by Kate L. Howard against the City of New Madrid. Judgment for plaintiff, and defendant appeals. Affirmed.

W. H. Miller and J. G. Miller, for appellant. J. V. Conran, for respondent.

GOODE, J.

Action by plaintiff, respondent here, against the city of New Madrid, a city of the fourth class, for damages for injuries alleged to have been received by her in passing over a defective sidewalk in that city. The amended petition upon which the case was tried, after setting out the incorporation of the city of New Madrid as a city of the fourth class, and the location of the street on which the injury is alleged to have occurred, and that the sidewalk along the street was maintained and permitted by the defendant for the general public, and that defendant was fully aware of all the facts and statements in the petition set out, and that it was the duty of the defendant "to keep said walk in reasonably safe condition for the public and persons passing over the same," charges that the boards on which the top planks had been nailed had rotted; that the nails had come out of the planks, and the walk was in such a condition that the defendant by failure to reconstruct, repair, or remove was grossly negligent or careless of the safety and welfare of the persons passing over the same, and was aware of the condition of the walk, and knew that the stringers or under pieces had so rotted; that the nails had come out; that the top planks were loose; or by the exercise of care and observation could have known these facts; and that the plaintiff, "in orderly, carefully, and properly passing over said walk," was struck by a loose board in the walk flying up and striking her upon the lower part of her leg, "causing her an injury which did cause her great pain, expense, and loss of time, pain of body and anguish of mind; * * * that the defendant had not in any way, after timely notice and knowledge, taken any steps to warn the public of the condition of the said walk; that plaintiff did not know of the condition of the walk at the point where she was injured and damaged in the sum of $20,000; that the accident was occasioned by no fault of hers: Wherefore plaintiff prays judgment for $10,000 actual and for $10,000 exemplary damages." The answer alleges that whatever defects there were in the sidewalk were apparent to any one passing over it and using it, and that, if there were any defects, plaintiff assumed all the risks incident to such user; that whatever defects existed in the sidewalk were well known to plaintiff before she passed over it on the day on which she alleges she received the injuries complained of and had assumed all risks incident to such use, and whatever injuries she received were the direct result of her own negligence and carelessness contributing directly thereto, in this: that, after receiving warning of the dangerous and unsafe condition of the sidewalk, she voluntarily undertook to pass over it.

On trial before a court and jury, plaintiff introduced evidence tending to show that the condition of the sidewalk where the accident occurred was bad; that the condition was apparent to anybody, some planks were loose and some nailed down, and at some places the boards were entirely gone; that the plaintiff, who was a school teacher in one of the public schools, in going from her boarding house to her school, would have to and did go over this walk. She had been boarding and teaching school there for some four or five months previous to the accident. This sidewalk was one of the most traveled portions of the thoroughfare in the city. This was the testimony of a witness for plaintiff, he repeating, under cross-examination, that the condition of the sidewalk along the place of the accident was known to everybody. One of plaintiff's witnesses testified that he did not consider that it was particularly dangerous, but its condition was apparent to any one stepping on the boards. They would rattle; quite a number of them were displaced. There was also testimony to the effect that the city officers were in the habit of passing over this sidewalk, and presumably knew its condition. Beyond this there was no proof of actual knowledge brought home to the city authorities. It was a board walk, built of cypress lumber, with three stringers from an inch and a half to two inches thick, some of them, probably, a foot wide. The boards were of different size and about five feet long. At some places the boards were entirely absent. The walk was in such condition, said one of the witnesses, that the officers charged with the maintenance of it could easily ascertain its condition; any one passing along the street could see that it needed repairing. This witness was asked if he knew what salary the plaintiff was receiving as school teacher. This was objected to on the ground that there was no pleading to justify any testimony of that kind. Counsel for plaintiff stated that he offered it for the purpose of showing that it ought to be considered by the jury to ascertain what the loss of time damaged her, if any. The question was permitted to be asked; counsel for defendant objecting and excepting to the ruling of the court. Witness answered that plaintiff was receiving in the neighborhood of $45 a month as salary as a teacher. A witness for the defendant, a lady who was with her at the time of the accident, testified that she and plaintiff were walking along the sidewalk together, and she (witness) had stepped in front of the plaintiff and stepped on a loose plank, and it flew up and one end of it struck plaintiff on the lower part of her left limb. The accident occurred between 6 and 6:30 on an evening in January. They were walking along at an ordinary walking gait. This lady testified that every one who used the sidewalk knew that it was shackly and unsafe, boards were loose, planks gone; the loose planks looked like they were good, but they did not have any nails in them; that was the kind of plank, said this witness, that caused the trouble. It was one that seemed to be nailed down. She had stepped on it, and it flew up and struck plaintiff. Plaintiff herself testified that at the time of the accident she was a teacher in the primary school at New Madrid; that she had to stop teaching because she was crippled, had been downtown with another lady getting her mail, and was returning home when she received the injury complained of. She testified that when they got to the bad walk — that is, the bad places in the walk — it was dark, and she took her time over that, going slowly, and was walking behind her companion, and, when they got up to where the walk was all good, her companion said something to her, and waited until plaintiff caught up with her, when her companion started forward and stepped on the end of the board which threw it up and it struck plaintiff on the leg; struck...