Muncy v. City of Bevier

• Citation: 101 S.W. 157,124 Mo. App. 10
• Parties: MUNCY v. CITY OF BEVIER.
• Decision Date: 01 April 1907
• Court: Court of Appeal of Missouri (US)

101 S.W. 157

124 Mo. A. 10

MUNCY v. CITY OF BEVIER.

Kansas City Court of Appeals. Missouri.

April 1, 1907.

1. MUNICIPAL CORPORATIONS — ACTIONS — EVIDENCE — SUFFICIENCY.

In an action for injuries sustained in falling from a sidewalk into an excavation, held, that the question of the city's liability was for the jury.

2. SAME — INSTRUCTIONS.

Where, in an action for injuries sustained in falling from a sidewalk into an excavation, there was evidence tending to show that the excavation had remained unguarded for such a length of time that knowledge by the city might be reasonably inferred, though there was no positive evidence going to show such knowledge on the part of the city, yet it was proper to give an instruction authorizing a finding for plaintiff, if the jury believed that the city or any of its officers or agents knew of the defect.

3. TRIAL — INSTRUCTIONS — CURE OF ONE INSTRUCTION BY ANOTHER.

Where, in an action for injuries sustained in falling from a sidewalk into an excavation, there was evidence that the excavation had been guarded by a barrier until within at least a few days before the accident, an instruction, erroneous in that it left out of consideration altogether knowledge by the city of the unguarded condition of the excavation prior to the accident, was none the less misleading by reason of the fact that other instructions were given properly submitting the question of knowledge by the city.

4. SAME — INVASION OF PROVINCE OF JURY.

An instruction, in an action for injuries sustained in falling from a sidewalk into an excavation, on the measure of damages, which assumed that plaintiff lost time from his work as the result of the accident, was erroneous.

5. SAME.

An instruction, in an action for injuries sustained in falling from a sidewalk into an excavation, which assumed that defendant was negligent, was erroneous.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by Jesse Muncy against the city of Bevier. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

C. F. Hale and T. E. Francis, for appellant. White & Lacey, for respondent.

BROADDUS, P. J.

This is a suit for damages for injuries sustained by reason of the alleged negligence of the defendant city. The defendant is a city of the fourth class. The evidence is somewhat conflicting, and is as follows: On the 26th day of December, 1904, in the nighttime, the plaintiff fell from the sidewalk on Elvira street into an excavation of about four feet running parallel with the street and located between the same and adjoining property. The plaintiff and another person by the name of Burnett were standing on the sidewalk engaged in a conversation, when, as another person was passing, they stepped back to get out of his way, and plaintiff fell off and into the excavation or ditch. This ditch had been in existence for a long time previous, and the evidence was that plaintiff had only seen it once before, but was not aware of its proximity to the sidewalk. Three witnesses testified for plaintiff that they had been in the habit of passing over the place frequently, but did not notice that there was any barrier between the sidewalk and the ditch, and each said that there had never been at any time. Burnett's evidence was to the effect that there was no such barrier at the time of plaintiff's injury. On the other side, J. W. Rudkin testified that on the night in question he could not say that there was a barrier, but there had been one previously. He stated further that just a few days before the time mentioned or at the time there was...