Huff v. City of Marshall

• Decision Date: 05 January 1903
• Citation: 97 Mo. App. 542,71 S.W. 477
• Parties: HUFF v. CITY OF MARSHALL.
• Court: Missouri Court of Appeals

71 S.W. 477

97 Mo. App. 542

HUFF v. CITY OF MARSHALL.

Court of Appeals at Kansas City, Missouri.

January 5, 1903.

DEFECTIVE SIDEWALK—INJURY TO PEDESTRIAN —CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS —EVIDENCE.

1. Where plaintiff knew a sidewalk was out of repair, but did not know it was in such state that it might not be used, and was not looking down at the walk, but was carrying herself so that her vision was about as it is with ordinary pedestrians, and was walking immediately behind some ladies, when they met a man, who, in attempting to pass, stepped on the end of a board in the sidewalk, which caused it to suddenly rise in front of her and throw her, she is not shown, as matter of law, to have been negligent.

2. Though the second instruction, given at plaintiff's request, in an action for injury from a defective sidewalk, omitted to state that plaintiff, to recover, must have been free from negligence, yet the first one having required a finding that she was "without fault or negligence," and the third and fourth having been devoted especially to the subject of her negligence, and all her other instructions having included that proposition, and the jury having been cautioned in this regard in defendant's series of instructions, they cannot have been misled.

3. For the purpose of showing notice to a city of a defect in a sidewalk, the inquiry should not be limited to the very board which caused the accident, but it is enough that the evidence was confined to the condition of the walk in front of the premises where plaintiff fell and within a short space along that part of the walk.

Appeal from circuit court, Saline county; Samuel Davis, Judge.

Action by Helen B. Huff against the city of Marshall. Judgment for plaintiff. Defendant appeals. Affirmed.

J. F. Barbee, R. P. Spencer, and Harvey & Gower, for appellant. Rector & Lyons and Duggins & Rainey, for respondent.

ELLISON, J.

This is an action for damages resulting from personal injuries suffered by plaintiff in falling on one of the sidewalks in the streets of defendant. The judgment in the trial court was for the plaintiff. Since the verdict was for the plaintiff, we will state what the evidence in her behalf tended to prove. It appears therefrom that the board sidewalk at and along the place where she fell was in an unsafe condition by reason of the boards being nailed to stringers which had become old and rotten. That the walk had been in that condition for such length of time that the officers of the defendant city knew it, or might have known it if they had been diligent in that regard. Plaintiff also knew the walk was out of repair, but she did not know that it was in such state that it might not be used. On the day of the accident, plaintiff was passing along the walk immediately behind some ladies who were going in the same direction, when they met a gentleman walking in the opposite direction. In his attempting to pass these ladies, he stepped on the end of one or two of the boards, which caused them to suddenly rise up so immediately in front of plaintiff as to cause her to fall over them and hurt herself seriously. At the time, she was not looking down at the walk, but was carrying herself so that her vision was about as it is with ordinary pedestrians.

There can be no serious objection to the statement that ...