O'Leary v. Kansas City

• Decision Date: 02 December 1907
• Citation: 106 S.W. 94,127 Mo. App. 77
• Parties: O'LEARY v. KANSAS CITY.
• Court: Missouri Court of Appeals

106 S.W. 94

127 Mo. A. 77

O'LEARY v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

NEGLIGENCE—INSTRUCTIONS.

The giving of a requested instruction on negligence is not error merely because it does not contain a definition of the term "negligence."

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Mary O'Leary against Kansas City. Judgment for plaintiff. Defendant appeals. Affirmed.

Edwin C. Meservey and Francis M. Hayward, for appellant. Henry J. Latshaw and Ralph S. Latshaw, for respondent.

JOHNSON, J.

Plaintiff fell into a hole in a sidewalk on one of the public streets of Kansas City and was injured. She alleges, in her petition, that the injuries were caused by the negligence of defendant in failing to exercise reasonable care to discover and repair the defect. The answer of defendant contained a general denial and a plea of contributory negligence. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $1,225, and the cause is here on the appeal of defendant.

The only error assigned relates to the first instruction given on behalf of plaintiff, which is as follows: "The court instructs the jury that if you find and believe from the evidence that on November 29, 1904, and for a number of months continuously prior thereto, there was a hole or step-off several feet deep on the west side of Bell street and about 200 feet south of Ninth street, and that said hole or step-off, if any, made said sidewalk dangerous and not reasonably safe for the ordinary purposes of travel thereover, and if you further find and believe from the evidence that defendant knew, or by the exercise of ordinary care and caution could have known, of said condition of said sidewalk at said place on November 29, 1904, and for a reasonably sufficient length of time prior thereto to have either remedied said defects, if any, in said sidewalk, or to have placed barriers, lights, or other warning at or near said hole or step-off, if any, by the exercise of reasonable care and caution, and that defendant failed to repair said sidewalk or to put up said barriers or lights or other warnings at or near said hole or step-off, and if you further find and believe from the evidence that said neglect of said defendant to either remedy said hole or step-off, or put up lights or barriers at or near said hole or step-off, was negligence on the part of defendant, and that on account of said negligence, if any, pla...