"1.
The plaintiff in her petition alleges in substance that the
defendant is a municipal corporation, and that it was the
duty of defendant to keep the streets in repair and safe; one
of its streets being, as alleged, called Seventh street, in
the original city of Armourdale, now a part of defendant
city, Kansas City Kansas; that the said defendant, the city
failed to construct a sidewalk in said street of sufficient
scantling and boards; that the work was unskillfully
performed; that both in material and workmanship it was
insufficient, unsafe and dangerous for public travel; and
that said defendant knowingly permitted said sidewalk to be
and remain out of repair, in allowing boards on said sidewalk
to become loose and unfastened; and further alleges, that on
or about the 29th day of August, 1886, while plaintiff was
walking on said sidewalk, in the exercise of ordinary care
and caution, unfastened boards in said sidewalk tipped up
under her feet, causing her to fall with violence upon said
sidewalk, by reason of which she received the injuries
complained of, to the damage of plaintiff, as she alleges, in
the sum of $ 10,000. The defendant, answering the petition
denies each and every allegation thereof, except that
defendant is a municipal corporation as alleged, which
defendant admits. And the defendant for a further answer
says, that the injuries of plaintiff, if any, she received by
the want of care, and negligence of plaintiff directly
contributing thereto.
"2.
The burden of proof is upon the plaintiff, and she must make
out her case by a preponderance of the evidence; by
preponderance of evidence is not meant the mere greater
number of witnesses upon the one side or the other, but that
evidence which is most convincing and satisfactory to the
minds of the jurors. In determining upon which side the
preponderance of the evidence is, the jury may take into
consideration the opportunities of the several witnesses for
seeing and knowing the things about which they testify, their
conduct and demeanor while testifying, their interest, if
any, or want of interest, if any, in the result of the suit
the probability or improbability of the truth of their
several statements, in view of all the other evidence and
other facts and circumstances appearing upon the trial, and
from all the circumstances determine the weight or
preponderance of the evidence. The jury are the sole judges
of the weight of the evidence and the credibility of the
witnesses.
"3.
If the jury believe from the evidence that any witness has
willfully and corruptly testified falsely concerning any
material matter in dispute, they may disregard the whole or
any portion of the evidence of such witness; there is no
inflexible rule interposed between the witnesses and the jury
requiring the jury to accept or reject all the testimony of
any witness.
"4.
Before the plaintiff can recover a judgment in this action
it must appear by a preponderance of the evidence: First,
that the plaintiff, Mary J. Bradbury, was injured as the
result of a defect in the sidewalk on said Seventh street in
the defendant city, as set out in her petition. Second, that
said city or its officers were negligent in permitting said
sidewalk to remain in said unsafe condition at the time said
plaintiff was injured. To charge the defendant with
negligence, it must appear that the proper officers of said
city had notice of the unsafe condition of said sidewalk in
time to have prevented the injury to said plaintiff by
falling on said defective sidewalk, (if you find she was so
injured,) or that by the exercise of reasonable and ordinary
care and diligence they could have known of the unsafe
condition of the sidewalk.
"5.
You are instructed that it is not necessary that the
defendant city should have had actual notice of the unsafe
and dangerous condition of the sidewalk (if you find that the
sidewalk was unsafe); if you find that said condition of said
sidewalk existed a sufficient length of time before the
injury to plaintiff to have enabled the defendant city, or
its officers and agents, by the exercise of ordinary care and
diligence, to have known of the existence thereof and
remedied the same, then the law implies a notice to the
defendant city of the existence of the condition.
"6.
The city is liable, not only for injuries occasioned by
negligently constructing defective sidewalks on its streets,
or by causing such defects in them after they are
constructed, but also for negligently permitting them to
remain in a dangerous or unsafe condition, no matter how such
condition was cause. Any person traveling upon a street has a
right to use any portion of the street or sidewalk for that
purpose, not already otherwise in use, and a person traveling
upon a street or sidewalk of a city has a right to assume
that such street or sidewalk is in a safe condition, and to
act upon that assumption, relying upon the belief that the
city has performed its duty and placed and maintained such
street or sidewalk in a safe condition. If the jury find from
the evidence that said plaintiff is entitled to recover
herein for the injuries complained of in her said petition,
she will be entitled to a verdict for an amount which shall
be full compensatory damages for the loss of time from the
performance of her usual and ordinary labors and duties, the
expenses necessarily incurred for medicines and medical
attendance, and for the physical pain which have resulted
from the injury, up to the time of the commencement of the
action; and if you find from the evidence that said plaintiff
is still disabled from such injury, such further damages as
appear from the evidence to be the natural and probable
result of such injuries, taking into consideration the
permanency or probable duration of the same, not exceeding in
all the sum of $ 10,000.
"7.
In order for the plaintiff to recover in this action, she
must satisfy the jury from the evidence that she received her
injuries (if you find she received any injuries) from defects
in the sidewalk of the defendant city, at the place and of
the character and in the manner set out in her petition, and
that such defects were of a character that they could be
discovered by the exercise of ordinary care and diligence.
"8.
By reasonable and ordinary care and diligence, is meant that
degree of care and prudence which an ordinarily careful and
prudent man would be expected to use under similar
circumstances."
