Hurst v. City of Ash Grove

• Decision Date: 12 November 1888
• Citation: 9 S.W. 631,96 Mo. 168
• Parties: HURST et al. v. CITY OF ASH GROVE.
• Court: Missouri Supreme Court

9 S.W. 631

96 Mo. 168

HURST et al. v. CITY OF ASH GROVE.

Supreme Court of Missouri.

November 12, 1888.

PLEADING — DEFECT CURED BY VERDICT.

Where the petition in an action against a city alleges that defendant negligently suffered its sidewalk to be obstructed, and that plaintiff, coming in contact with the obstruction, was injured, but does not allege that defendant had notice, the defect, not having been taken advantage of by motion or demurrer, is cured by a verdict for plaintiff, though defendant objects to any evidence, on the ground that for want of such an allegation the petition does not state a cause of action.

Appeal from circuit court, Greene county; W. F. GEIGER, Judge.

Action by Sarah Hurst and Thomas Hurst, her husband, for personal injuries received by the former, against the city of Ash Grove. Judgment for plaintiffs, and defendant appeals.

Massey & McAfee, for appellant. Goode & Cravens and James R. Vaughan, for respondents.

NORTON, C. J.

This is an action to recover damages for injuries alleged to have been sustained by Sarah Hurst, wife of her co-plaintiff, in consequence of the negligence of defendant in allowing an obstruction on Main street in said city. On the trial, plaintiffs obtained judgment for $5,000, from which defendant has appealed; and, while the record shows that during the progress of the trial a number of objections were made by defendant, and exceptions saved, the only points made in the brief of counsel are that the petition does not state a cause of action, in that it fails to allege that defendant had notice of the obstruction that caused the injury, or to allege facts or circumstances from which notice might be legally inferred, and that the defective petition is not cured by the verdict and judgment. The points made we will proceed to consider, and so much of the petition as is necessary to their consideration is as follows: It alleges that defendant is a city of the fourth class, and by the laws of its creation has full and absolute control over the streets, including the sidewalks therein, and has the power, and it is its duty, to keep those highways in a safe and suitable condition for the use of the public; that Main street is one of the principal streets in said city, and more generally used by the public than any other in the city; that defendant failed and neglected to keep such street and highway in such repair and condition, and that on the _____ day of June, 1884, the defendant unlawfully and negligently suffered and permitted the sidewalk a part of Main street, between the fronts of the stores of one James and one Smidler, where there was a platform on a line with said walk, to be obstructed by the placing of the tongue of a reaping-machine over and across the sidewalk at said point, at such a height that persons passing along would naturally strike their feet and limbs against said tongue, and stumble or fall; that plaintiff Sarah Hurst,...