Kelley v. Kansas City

• Decision Date: 16 January 1911
• Citation: 153 Mo. App. 484,133 S.W. 670
• Parties: KELLEY v. KANSAS CITY.
• Court: Missouri Court of Appeals

133 S.W. 670

153 Mo. A. 484

KELLEY v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

January 16, 1911.

Rehearing Denied January 30, 1911.

1. MUNICIPAL CORPORATIONS (§ 819)—DEFECTIVE SIDEWALKS—INJURY TO PEDESTRIAN —CAUSE—EVIDENCE—SUFFICIENCY.

In an action for injury to a pedestrian on a defective board sidewalk, plaintiff's evidence as to how the accident occurred held not inconsistent with the surrounding physical facts.

2. MUNICIPAL CORPORATIONS (§ 821)—DEFECTIVE SIDEWALKS—INJURY TO PEDESTRIAN — CONTRIBUTORY NEGLIGENCE — JURY QUESTION.

Whether a pedestrian suing for injury received on a defective board sidewalk was guilty of contributory negligence held under the evidence a jury question.

3. MUNICIPAL CORPORATIONS (§ 806)—SIDEWALKS —SAFETY—RIGHTS OF PEDESTRIANS.

A pedestrian can assume that the city has used reasonable care to maintain reasonably safe sidewalks, but must use ordinary care for his own safety.

4. MUNICIPAL CORPORATIONS (§ 821)—SIDEWALKS —RIGHTS OF PEDESTRIANS.

It is not negligence per se for a pedestrian to converse with a companion while walking along a sidewalk, as affecting the city's liability for injury caused by a defect in the sidewalk.

5. MUNICIPAL CORPORATIONS (§ 822)—SIDEWALKS —INJURY TO PEDESTRIANS—INSTRUCTIONS.

In an action for injury to a pedestrian, an instruction will not be regarded as erroneous because subject to a strained construction as submitting an issue of a defective step, where plaintiff's contention throughout was that a hole in a sidewalk plank, together with a step under it, constituted a dangerous defect, and the

jury could not have reasonably misunderstood the instruction.

6. MUNICIPAL CORPORATIONS (§ 822)—SIDEWALKS —INJURY TO PEDESTRIANS—INSTRUCTIONS.

An instruction, in an action for injury to a pedestrian on a sidewalk, that the city was bound to keep the sidewalk reasonably safe, and that if by reasonable diligence the city could have discovered any defect, etc., plaintiff could recover, was not erroneous as absolutely requiring the city to keep the sidewalk reasonably safe, and sufficiently defined the city's duty to use reasonable care to maintain a reasonably safe sidewalk.

7. TRIAL (§ 295)—INSTRUCTIONS—CONSIDERATION AS A WHOLE.

Isolated parts of an instruction cannot be considered as having misled the jury.

8. MUNICIPAL CORPORATIONS (§ 803)—SIDEWALKS —PEDESTRIANS—CARE REQUIRED.

A pedestrian need not exercise a "higher degree of care" in descending a step in a sidewalk than in passing along a level walk, though ordinary care, which applies in both situations, might require more caution in stepping down.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Florence L. Kelley against Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

John G. Park, A. F. Smith, J. W. Garner, and I. D. Hook, for appellant. Bird & Pope, for respondent.

JOHNSON, J.

This is a suit to recover damages for personal injuries plaintiff alleges were caused by the negligence of defendant city in failing to maintain in proper repair a board sidewalk on one of its public streets. The answer is a general denial and a plea of contributory negligence. A trial resulted in a verdict and judgment for plaintiff in the sum of $2,500. Defendant appealed.

The injury occurred at 8:30 p. m. September 22, 1908, at the southwest corner of Twenty-Third and Terrace streets in Kansas City. Plaintiff, who was 51 years old and weighed 220 pounds, had been visiting her married daughter, who lived on Twenty-Third street, and was on her return home, when she stepped in a hole at the end of one of the sidewalk planks, fell, and was injured. Twenty-Third street runs east and west; Terrace street north and south. There was a board sidewalk on the south side of Twenty-Third street, ending at the curb line on the west side of Terrace street. The planks of this walk were laid crosswise on stringers which ran with the course of the street. There was also a board sidewalk on the west side of Terrace street, the end of which adjoined the walk on Twenty-Third street in a way to make a continuous sidewalk around the corner. The planks of the Terrace street sidewalk were laid at right angles to those on Twenty-Third street, and the end plank was about on the south property line of Twenty-Third street. Two long, wide boards, laid crosswise of Terrace street, constituted the crossing for pedestrians over that street. The west end of this crossing was not at the end of the Twenty-Third street sidewalk, but was placed just south thereof at the north end of the Terrace sidewalk. The hole in the end plank of that walk was at the north end of the plank and was in the course a pedestrian would take who, coming east on Twenty-Third street, purposed to cross Terrace street on the plank crossing described. The west end of that crossing was much lower than the sidewalk, and a plank step intervened. Plaintiff and a companion, walking east on Twenty-Third street, came to this step, and plaintiff stepped into the hole as she started to step down to the street crossing. In some way the heel of her shoe caught in the edge of the hole causing her to lose her balance and fall down the step to the crossing. The end of the shoe heel where it caught in the hole was torn off. The hole was a decayed place in the board, and it edges were irregular. Plaintiff testified: "I was thrown down this step. It seems my foot caught in a hole in the sidewalk, and that threw me down and my foot went under me." Plaintiff admits she and her companion conversed as they walked along; but her testimony, as well as that of her companion, is that they were paying attention to the sidewalk, but failed to see the hole on account of insufficient light. There was an arc lamp nearby, but it was so placed that the hole was in a shadow and was not to be seen easily. Plaintiff's daughter...