Miller v. Town of Canton

• Decision Date: 02 May 1905
• Parties: MILLER v. TOWN OF CANTON.
• Court: Missouri Court of Appeals

87 S.W. 96

112 Mo. App. 322

MILLER v. TOWN OF CANTON.

St. Louis Court of Appeals. Missouri.

May 2, 1905.

MUNICIPALITIES — NEGLIGENCE — DEFECTIVE SIDEWALKS — PERSONAL INJURIES—DUTY OF TOWN — TOWN OFFICIALS — INSPECTION OF WALKS—REASONABLE DILIGENCE — NOTICE — RULE—SIDEWALK COMMITTEE — EVIDENCE — PRESUMPTIONS — INSTRUCTIONS—QUESTIONS FOR JURY—ERROR.

1. It is the duty of town officials, having jurisdiction over the streets of the town, to observe their condition, and to make an inspection where there is any visible evidence of a defect dangerous to the traveling public; hence it was error, in an action against a town for injuries to one who fell on a defective sidewalk, to instruct that negligence of defendant was not to be presumed from its failure to search for defects in the walk.

2. The presumption that city officers do their duty in respect to keeping sidewalks in repair is applicable only where there is no evidence on the subject.

3. It is the duty of a city to discover and repair all defects in a sidewalk which it can discover by the exercise of reasonable diligence, and it is not relieved from liability for injuries to a pedestrian through such defects by showing that they were not of a character to attract the attention of passers-by.

4. There is no definite rule as to what length of time would be required to justify the inference of notice to a city of defects in a side-walk. Each case depends on the facts and circumstances attending it.

5. It is the duty of a city to exercise greater care in respect to keeping in repair a side-walk on a much traveled street than one on a street used but little.

6. The negligence of the sidewalk committee of a town in respect to exercising reasonable care to keep the sidewalks of the town in safe condition for public travel is imputable to the town.

7. Notice of defects in a town sidewalk to the officers of the town who are charged with the duty of keeping its sidewalks in repair is notice to the town.

8. It is not necessary to show actual notice to any of a town's officers charged with keeping in repair its sidewalks, of the defective condition thereof, in order to render it liable for injuries resulting therefrom. It is sufficient to show that the defective condition had existed for such a length of time prior to the alleged accident that such officers might have known of it by the exercise of ordinary care and diligence.

9. In an action against a town for personal injuries to a pedestrian falling on a defective sidewalk, evidence for the purpose of showing that the unsafe condition of the walk had existed for a sufficient length of time to charge defendant with notice thereof is not confined to the very board causing the injury, but the jury may consider the condition of the walk at other places therein within a short distance of the place of the injury.

10. In an action against a town for personal injuries caused by a defective sidewalk it was error to permit witnesses to testify that, in their opinion, the walk was in a reasonably safe condition before plaintiff was injured.

Appeal from Circuit Court, Lewis County; E. R. McKee, Judge.

Action by Emma J. Miller against the town of Canton. Judgment for defendant, and plaintiff appeals. Reversed.

Earl M. Pirkey, for appellant. Arthur Hilbert and W. M. Hilbert, for respondent.

BLAND, P. J.

The town of Canton, in Lewis county, was incorporated by special act of the Legislature in 1873. Its duty under its charter, in respect to the public streets and sidewalks of the town, is the same as that of other incorporated towns of its class in this state; that is, it is required to keep its streets and sidewalks in a reasonably safe condition after they have been opened to the public for travel. One of the principal streets in the town is Lewis street, which has been long open to the public for travel, and is much used. It runs north and south. On the north side of Lewis street, in 1902, was a board sidewalk, constructed by laying two stringers parallel with the street as a foundation for the walk. Upon these stringers grub boards were laid and nailed, projecting from two to four inches beyond the stringers. On the north side of the street is the Smoot property, and the evidence is all one way that as early as in January, 1902, the sidewalk in front of this property was out of repair and in bad condition, and that planks here and there were loose, and at places entirely out, and some of the stringers, especially on the south side, rotten. On May 31, 1902, about 9 o'clock p. m., plaintiff, in company with her husband, was walking on this sidewalk in front of the Smoot property, unapprehensive of danger, and with due care, when she was hurt by falling on the sidewalk. She described the accident as follows: "As we were going along the sidewalk by Mrs. Smoot's, Mr. Miller, who was upon my left side, stepped upon one of the boards of the walk, and the board thereupon flew up, and as I took the next step my left foot went partly into the hole left by the board, and the board then falling down hit me across the foot and very violently threw me down. I pitched forward toward the west, the way I was going. I had only my left foot in the hole, and the whole weight of my body went down on that side. My foot was fastened in the hole, and I got it wrenched in falling. Mr. Miller had to pull the board out before he could...