Loftis v. Kansas City

• Decision Date: 29 May 1911
• Citation: 156 Mo. App. 683,137 S.W. 993
• Parties: LOFTIS v. KANSAS CITY.
• Court: Missouri Court of Appeals

137 S.W. 993

156 Mo. App. 683

LOFTIS v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

May 29, 1911.

1. MUNICIPAL CORPORATIONS (§ 805)—DEFECT IN SIDEWALK—CONTRIBUTORY NEGLIGENCE—KNOWLEDGE OF DEFECT.

The use of a sidewalk with knowledge of a defect is not contributory negligence, where the defect is not so patently dangerous that an ordinarily prudent and careful person would not attempt to pass over it.

2. MUNICIPAL CORPORATIONS (§ 807)—DEFECT IN SIDEWALK—CHOICE OF WAYS.

Though a person has knowledge of a defect in a city sidewalk, he is under no absolute duty to leave the walk and proceed along the street proper or by some safer way.

3. APPEAL AND ERROR (§ 1004)—REVIEW—EXCESSIVE DAMAGES.

Where the question whether a verdict for injuries was excessive depended on the credit given by the jury to the evidence, it will not be disturbed on appeal.

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

Action by Ida B. Loftis against Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

F. M. Hayward, for appellant. Boyle & Howell and Joseph S. Brooks, for respondent.

ELLISON, J.

Plaintiff claimed to have been injured on one of defendant's board sidewalks, in a public street, which she charged was negligently permitted to become and remain in a dilapidated and dangerous condition. She recovered judgment in the trial court for $3,000.

The evidence showed that plaintiff fell over a loose and decayed board in the sidewalk at about noonday. She had not been over the walk before, and on this occasion she was preceded a few feet by her son, a lad of about 15 years. He saw that the boards were loose from the stringers, some at one and others at both ends, and he turned and spoke to plaintiff about the condition of the walk. She, too, had observed its state of repair, but said that she thought she could get along. Just then she attempted to step over a defective board, but stepped onto another of the same character, and "went down." The board she stepped on "looked sound and like it was nailed to the stringers, but it was all rotted out." She stated that she had no idea that she would fall. That the sidewalk was unsafe and dangerous is practically conceded by defendant, and the chief defense was that, being in that condition and plaintiff knowing it, she was guilty of contributory negligence in attempting to walk over it. The street itself was paved and might have been used by pedestrians.

While there is not uniformity of opinion in the application of the law governing municipalities, as to their duties concerning sidewalks, to a given state of facts, yet the law itself is consistently stated to be that, if the defect in the walk is not so patently dangerous that no ordinarily prudent and careful person would attempt to pass over it, such person is not precluded as a matter of law from a right of action, if he be hurt in using the walk with ordinary care to avoid injury. Plaintiff has cited us to a number of decisions by the Supreme Court and the Courts of Appeals which bear out this statement of the law. Heberling v. Warrensburg, 204 Mo. 604, 103 S. W. 36; Chilton v. St. Joseph, 143 Mo. 192, 44 S. W. 766; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Coffey v....