Huff v. City of Marshall
| Decision Date | 05 January 1903 |
| Citation | 71 S.W. 477,97 Mo.App. 542 |
| Parties | HELEN B. HUFF, Respondent, v. CITY OF MARSHALL, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.
AFFIRMED.
Judgment affirmed.
R. P Spencer, J. F. Barbee and Harvey & Gower for appellant.
(1) A city is not an insurer of pedestrians upon its streets and sidewalks against accidents, nor is every defect or imperfection in its streets or sidewalks actionable. Dillon on Mun. Corp., sec. 1019; Elliott on Roads and Streets, p 448; Brown v. Glasgow, 57 Mo. 156; Craig v Sedalia, 63 Mo. 417; Carvin v. St. Louis, 151 Mo. 334. (2) Furthermore, there is no proof of actual notice on the part of the defendant city that there was a defect in the sidewalk where plaintiff fell. A defect, to put the city on notice, must be open and obvious; proof of hidden or latent defects, which would not attract or arrest ordinary attention, is not sufficient. Baustian v. Young, 152 Mo. 317; Carvin v. St. Louis, 151 Mo. 334; Franke v. St. Louis, 110 Mo. 539. (3) Plaintiff was guilty of contributory negligence and ought not to be permitted to recover. One who attempts to cross over a sidewalk as a part of a road known to him to be dangerous, when the dangerous place could easily have been avoided by passing around it, is wanting in due care, and the court may so declare as a matter of law. Cohn v. City of Kansas, 108 Mo. 387; Boyd v. Springfield, 62 Mo.App. 456; Dillon on Mun. Corp., sec. 789; Gerdes v. Iron & Foundry Co., 124 Mo. 347. (4) It was error to permit evidence to show the condition of the sidewalk for fifty feet in front of Mrs. Annie Duggins' residence, or between her front gate and the southeast corner of her yard or lot. The evidence should have been confined to the place of, or the immediate vicinity of, the accident, and to its condition at that time and to no other place. Bowles v. Kansas City, 51 Mo.App. 416; Hipsley v. Railroad, 88 Mo. 348. (5) The court also committed error in permitting witness Sparks to testify as to the condition of the sidewalk some three years prior to the time of the accident. Such evidence was clearly inadmissible and should have been excluded. Gerdes v. Iron & Foundry Co., 124 Mo. 347. (6) It was clearly error for the court to give instructions Nos. 1 and 2, on behalf of the plaintiff, and the giving thereof was fatal error. Shoe Co. v. Lisman, 85 Mo.App. 340; Linn v. Bridge Co., 78 Mo.App. 111; Carder v. Primm, 60 Mo.App. 423; Voegeli v. Marble & Granite Co., 49 Mo.App. 643; Goetz v. Railroad, 50 Mo. 472; Schroeder v. Michel, 98 Mo. 43. (7) The court should have given instruction No. 2 asked by defendant. The defendant was entitled to instructions covering every defense. Cahn v. Reid, 18 Mo.App. 115; Cameron v. Hart, 57 Mo.App. 142; Laughlin v. Gerardi, 67 Mo.App. 372. (8) The damages awarded by the jury to plaintiff were excessive and clearly showed that the verdict was the result of prejudice and passion. Haynes v. Trenton, 108 Mo. 123; Hurt v. Railway, 94 Mo. 255; Franklin v. Fischer, 51 Mo.App. 345; Nicholds v. Crystal Plate Glass Co., 126 Mo. 55; Adams v. Railway, 100 Mo. 555; Fairgrieve v. Moberly, 39 Mo.App. 31.
A. F. Rector and Duggins & Rainey for respondent.
(1) There is no merit in defendant's first objection. (2) Proof of actual notice of a defective sidewalk to the officers and agents of a city is not necessary, in order to a recovery for injuries received thereon. If the sidewalk was defective and out of repair and had been for a period of time sufficient for the city, its officers, and agents, to have known of it, had they exercised reasonable diligence, is all the notice the law requires. Under this evidence it is clear that the city had actual notice of the unsafe condition of the walk. (3) The question of contributory negligence was properly submitted to the jury and the verdict is final. A person is not bound to abandon the sidewalk because it is out of repair. Flynn v. Neosho, 114 Mo. 569; Chilton v. St. Joseph, 143 Mo. 202; Squires v. Chillicothe, 89 Mo. 226. (4) The court did not err in confining the testimony to the walk between the gate and the corner of the lot. The evidence shows this distance to be only fifty or sixty feet and in front of same lot. The plaintiff did not know the exact spot on which she was injured. She said it was between the front gate and the corner. Mr. Freeman, the only other witness to the fall, said it was between the gate and the corner. The authorities cited by defendant are not in point. Baustian v. Young, 152 Mo. l. c. 325. (5) No error was committed by the court in giving instructions. Burdoin v. Trenton, 116 Mo. l. c. 371; Flynn v. Neosho, 114 Mo. 572; Taylor v. Springfield, 61 Mo.App. 266; Perrette v. Kansas City, 162 Mo. 249; Chilton v. St. Joseph, 143 Mo. 202; Schaaf v. Fries, 77 Mo.App. 346. (6) The damages assessed the plaintiff are not excessive.
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 the state of facts just indicated made a prima facie case for the plaintiff. The mere fact that she knew the condition of the walk, was not a bar to her recovery; it is only a matter to be considered by the jury in passing on her negligence. Flynn v. Neosho, 114 Mo. 567, 21 S.W. 903; Chilton v. St. Joseph, 143 Mo. 192, 44 S.W. 766; Squires v. Chillicothe, 89 Mo. 226, 1 S.W. 23. The evidence does not put this case in that class where a person voluntarily walks into a place so obviously and glaringly dangerous as that no prudent person would have undertaken it. The testimony of witness Sparks showing that the walk had been out of repair beginning back as long as three years, was asked to be stricken out, but no ruling was made thereon. His subsequent statement of specific repairs was ruled out. But there was other evidence...
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