Kirkpatrick v. Knapp

• Citation: 28 Mo.App. 427
• Parties: MARY KIRKPATRICK, Respondent, v. GEORGE KNAPP & COMPANY, Appellant.
• Decision Date: 03 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 427

MARY KIRKPATRICK, Respondent, v. GEORGE KNAPP & COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

January 3, 1888

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Reversed and remanded.

KRUM & JONAS, for the appellant: The coal-hole being a lawful feature of the sidewalk, the ordinary rule in regard to negligence applies. The failure to keep the covering in place was not per se negligence on the part of appellant. At most, it could only be required to exercise proper care. Fisher v. Thirkell, 21 Mich. 1; Beardsley v Swan, 4 McL. 333; 1 Thompson on Negligence, sec. 7, p 345. Non constat, but that the cover to the coal-hole had been misplaced by a trespasser, or person other than the appellant--in which event notice to appellant ought to have been shown. Daniel v. Potter, 4 Carr. & P. 262; Harrison v. Collins, 86 Pa.St. 153.

ROWE & MORRIS, for the respondent: Any person who renders the use of a sidewalk hazardous or less secure than it was left by the public authorities commits a nuisance. Cooley on Torts, 626. The plaintiff makes a prima-facie case when she proves that she met with an accident by reason of a defect in the sidewalk adjoining the premises of defendant. The plain duty of defendant was to see that the cover over the coal-hole was properly fastened and secured. It is self-evident that if the cover was properly fastened, respondent would not have been injured. Plaintiff had a right to presume that the sidewalk was safe. She was lawfully on the street and she should not have been exposed to the danger of stepping on a flap that would turn. The instructions given fully and fairly presented the law of the case to the jury and their finding was in accordance with the facts. Shearman & Redfield on Negligence, sec. 360; Buesching v. Gas Light Co., 73 Mo. 227; Clarke v. Famous, 16 Mo.App. 463; McGuire v. Spence, 91 N.Y. 305.

OPINION

ROMBAUER J.

The plaintiff recovered judgment for bodily injuries sustained, on a certain day, by falling into a cellar-opening or coal-hole which the defendant maintained for its own accommodation in the sidewalk of a public street of the city of St. La. Her petition charges that, on said day, and for a long time prior thereto, the defendant wrongfully, carelessly, and negligently suffered and permitted the grating over said cellar-opening to become broken loose and unguarded, so that said cellar-opening was unsafe to persons passing along said sidewalk, whereby on said day the plaintiff, while lawfully passing along said sidewalk and thoroughfare, fell into said cellar-opening, etc.

The answer is a general denial.

The defendant's ownership and occupancy of the building adjoining the sidewalk was admitted. The plaintiff's testimony tended to show that she resided in the vicinity, had passed over this sidewalk daily while in the city, and that she had frequently before stepped on this grating or covering of the cellar-hole, which was about two and one-half feet in diameter and constructed of iron; that, on the day named, she stepped upon it and the grating or cover turned and she was partly precipitated into the hole beneath, sustaining serious injuries.

There was no evidence that similar openings in sidewalks are prohibited by any municipal regulation; nor was there any evidence that the cover of the grating was faulty in its construction, or that it was out of repair, unless the accident itself was inferential evidence of those facts. Nor was there any evidence that the defendant had notice that the cover was partly misplaced, if such were the fact.

At the close of plaintiff's case the defendant requested the court to instruct the jury to find in its favor. This instruction the court refused. The defendant thereupon gave evidence tending to show that the grating or cover was properly constructed, and was, at the time of the accident, in such repair that it could not be displaced or turned by any one stepping upon it, unless it had been previously removed by some one from its frame.

This being all the evidence bearing on the question of defendant's liability, the defendant requested the following instruction:

" Unless the jury believe, from the evidence, that the injury received by the plaintiff was caused by a faulty construction of the cover to the coal-hole, they will find for the defendant. The plaintiff is not entitled to recover if the jury believe that she was hurt because the cover had been misplaced, and not because of the faulty construction of the cover."

This instruction the court refused, and upon plaintiff's request instructed the jury as follows:

" The court instructs the

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