Jerowitz v. Kansas City

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

77 S.W. 1088

104 Mo.App. 202

H. D. JEROWITZ, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

January 4, 1904

Appeal from Jackson Circuit Court.--Hon. Willard P. Hall, Special Judge.

AFFIRMED.

Judgment affirmed.

J. W Garner, R. J. Ingraham and L. E. Durham for appellant.

(1) The third instruction given by the plaintiff is, erroneous in this: that it declares it was the duty of the defendant Kansas City, to keep its streets in a proper state of repair free from obstructions. Such is not the law. The defendant, Kansas City, is required by the law to keep its streets free from such obstructions only as render the street not reasonably safe for travel, and is only required to keep its street in such a state of repair as will render the streets reasonably safe for travel thereon. Vogelgesang v. St. Louis, 139 Mo. 135; Cossman v. St. Louis, 153 Mo. 299; Welsh v. St. Louis, 73 Mo. 74; Wallace v. Westport, 82 Mo.App. 522.

I. J. Ringolsky for respondent.

(1) The only error presented and saved and for consideration by this court alleged by the appellant is an error committed by the court in giving the third instruction asked for by the plaintiff. This instruction has been approved in the exact form in which it was given, by the Supreme Court of this State in a case, where the facts were almost identical with the facts in the case at bar. Russell v. Columbia, 74 Mo. 480. This case has been cited with approval in not less than forty cases, which can be found in The Citator, Missouri Decisions, page 122. And most recently in the case of Stern v. St. Louis, 161 Mo. 146.

OPINION

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, so that they would be reasonably safe for travel. That is all the law requires. Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449; Welsh v. St. Louis, 73 Mo. 71; Vogelgesang v. St. Louis, 139 Mo. 127, 40 S.W. 653; Kassmann v. St. Louis, 153 Mo. 293.

It is true that the judgment was affirmed in the...