Oliver v. City of Kansas

• Decision Date: 31 October 1878
• Citation: 69 Mo. 79
• Parties: OLIVER v. THE CITY OF KANSAS, Appellant.
• Court: Missouri Supreme Court

69 Mo. 79

OLIVER

v.THE CITY OF KANSAS, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

S. P. Twiss and J. Brumback for appellant.

Cobb & Cook for respondent, cited Bassett v. The City of St. Joseph, 53 Mo. 290, and Brown v. The Mayor, &c., of Glasgow, 57 Mo. 156, cited by appellant, as well as Blake v. The City of St. Louis, 40 Mo. 569, and Bowie v. The City of Kansas, 51 Mo. 454; The City of Bloomington v. Bay, 42 Ill. 503.

HOUGH, J.

On the 19th day of December, 1873, the plaintiff was injured in consequence of a defect in the sidewalk on west Ninth street, between Mulberry and Hickory streets, in Kansas City. It appears from the testimony of the city engineer, that this street was in public use, and one of the principal thoroughfares of the city at the time of the accident, and had been since the summer of 1872, when it was graded by the city for the use of vehicles; but prior to the time plaintiff was injured no sidewalks had been constructed by the city. Plank walks of irregu lar width had been constructed by the owners of the adjacent property in front of their lots on the north side of Ninth street, one vacant lot excepted, in front of which three planks, each fourteen inches in width, were laid lengthwise, at an elevation of four or five feet from the ground, for the purpose of connecting the walks fronting the lots on either side of the vacant lot. The plaintiff while passing along said sidewalk in the night-time, supposing the same was continuous, missed the narrow walk formed by the three connecting planks, and stepping off beside it, fell to the ground below, and was thereby permanently injured. The condition of the street was known to the engineer, who had general supervision of the sidewalks of the city. On the 27th day of March, 1873, the city passed an ordinance providing for the grading of the sidewalk on the north side of Ninth street between Mulberry and Hickory streets, and on the 28th day of March, 1873, another ordinance was passed providing for building a plank sidewalk on the north side of Ninth street between the streets aforesaid. On the 14th day of July, 1873, another ordinance was passed providing for the construction of a plank sidewalk on the north side of Ninth street, between the above named streets, stating that the common council deemed it necessary to have said work done, and allowing the owners of the adjacent property twenty days in which to do the work themselves, and providing that what was not done in that time should be paid for in special tax bills against said property.

1. The court instructed the jury: That, on the 19th day of December, 1873, the defendant was, and for a long time had been, a municipal corporation, having, by the terms of its charter, the exclusive control and management of its sidewalks, and that it was the duty of defendant to keep the same on the streets in general public use for travel in a condition reasonably safe for persons passing along the same, in the day or at night, and if you believe from the evidence that Ninth street, between Mulberry and Hickory streets, was, at that time, such a street within the limits of said city, and that defendant neglected its duty, suffered and permitted a portion of the sidewalk, on the north side thereof, to be and remain in a condition dangerous to persons walking thereon at night, and that plaintiff, on or about said day, while walking in the night-time on said portion of said sidewalk, unaware of danger and using reasonable care, fell, because of said dangerous condition of said sidewalk, and was hurt and injured, then you are bound to find for plaintiff.

2. If you find for the plaintiff you will assess his damages at such a sum as you shall believe from the evidence will fully compensate him for the injuries received, and in a sum not exceeding $10,000; and in arriving at the amount you should take into consideration the extent and nature of the injuries, if any,...