Jerowitz v. Kansas City

• Decision Date: 04 January 1904
• Citation: 104 Mo. App. 202,77 S.W. 1088
• Parties: JEROWITZ v. KANSAS CITY.
• Court: Missouri Court of Appeals

77 S.W. 1088

104 Mo. App. 202

JEROWITZ v. KANSAS CITY.

Court of Appeals at Kansas City, Missouri.

January 4, 1904.

DEFECTIVE STREETS—DUTY OF MUNICIPALITY —INSTRUCTIONS.

1. In an action for injury from a defective street it is error to instruct that it is the city's duty to "keep its streets in a proper state of repair, free from obstructions, and reasonably safe for travel," instead of "in a proper state of repair, free from obstructions, so that they will be reasonably safe," etc.

2. Where other instructions clearly lay down the rule that a city is only required to keep its streets in a state of repair which is reasonably safe for travel, error in instructing that it should keep them in a proper state of repair and reasonably safe is harmless.

Appeal from Circuit Court, Jackson County; Willard D. Hall, Special Judge.

Action by H. D. Jerowitz against Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

R. J. Ingraham, for appellant. I. J. Ringolsky, for respondent.

ELLISON, J.

This action is for damages which plaintiff suffered by reason of an injury to his horse which he was driving along one of the streets of the defendant city. Plaintiff charges the injury to have been occasioned by defendant permitting an excavation in such street to remain improperly filled so as to leave a sudden depression, into which the horse stepped. The judgment in the trial court was for the plaintiff.

The only point made for reversal which was mentioned in the motion for new trial relates to the third instruction for plaintiff, wherein it was declared "that it was the duty of Kansas City to keep its streets in a proper state of repair, free from obstructions, and reasonably safe for travel." The objection to this instruction is that it imposes a greater burden of duty upon the city than can be legally required. It will be noticed that it requires that the street shall be kept in "proper state of repair," as well as "free from obstructions," and also "reasonably safe for travel." That is to say, the city is required to do those three things as independent and separate duties, neither having reference to the other. According to that instruction, the city is not only to keep the street in "proper" repair, but it must keep it free from all obstructions, and it must also keep it reasonably safe for travel. The instruction should have been so written that the "proper state of repair" and the freedom "from obstructions" would have referred to and been qualified by the "reasonably safe for travel." It then would have read that it was the duty of the city to keep its streets in a proper state of repair, free from obstructions,...