Reed v. City of Mexico
| Decision Date | 26 May 1903 |
| Citation | 76 S.W. 53,101 Mo.App. 155 |
| Parties | MARY A. REED, Respondent, v. CITY OF MEXICO, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.
AFFIRMED.
Judgment affirmed.
Wm. F Broadhead, John D. Orear and W. W. Fry for appellant.
(1) It must be shown either that the city had actual notice of the defect, or that it was so obvious or had existed for such a length of time as to indicate that the city would have known it if it had used proper care in observing the condition of its street. Even after notice of the defect, the city is entitled to a reasonable time in which to make the repairs and is not liable until it has neglected such opportunity. Baustian v. Young, 152 Mo. 317; Carvin v. St. Louis, 151 Mo. 334; Buckley v. Kansas City, 156 Mo. 16; Rudy v. Brewing Co., 161 Mo. 523. (2) Plaintiff's witnesses testified the plank they saw was loose in the walk, not outside and obvious. And the time, place, when and where they saw a loose plank does not correspond with the place where plaintiff was injured.
Geo. Robertson for respondent.
(1) The ordinances relating to the construction of sidewalks were properly admitted in evidence. Oliver v. Kansas City, 69 Mo. 79. The doctrine of this case is approved in the following cases: Beaudean v. City of Cape Girardeau, 71 Mo. 392; Haire v. City of Kansas, 76 Mo. 438. (2) Plaintiff's witnesses saw the defective sidewalk and defendant's did not observe it. Even if there had been contradictory evidence, still it is a matter within the discretion of the trial judge. Seligman v. Rogers, 113 Mo. 642; Hartpence v. Rogers, 143 Mo. 623; Miles v. Withers, 76 Mo.App. 87. (3) Notice may be inferred from the facts and circumstances. Young v. Webb City, 150 Mo. 333; Baustian v. Young, 152 Mo. 317; Badgley v. St. Louis, 149 Mo. 122; Carvin v. St. Louis, 151 Mo. 334; Bradley v. City of Spickardsville, 90 Mo.App. 416.
This is an action for damages for personal injuries sustained by plaintiff by a fall, alleged to have been occasioned by the defective condition of a sidewalk on Monroe street, a prominent thoroughfare of defendant. The action was brought in the circuit court of Audrain county, but the venue was changed to the circuit court of St. Louis county, where a trial was had by jury, which awarded a verdict of twenty-five hundred dollars in favor of plaintiff. The plaintiff, a married woman, at the time of the accident was in her fifty-fifth year, and had been the mother of five children. From early childhood she had resided in Mexico until seven years preceding the trial, during which she resided in Moberly; she was rather tall, and up to the time of the injury had been healthy and of 148 pounds' weight. About dark on October 25, 1901, in company with two other ladies, plaintiff was walking westwardly on Monroe street, one of the principal highways of defendant, on her way to the depot to return home, when, as described by her, she stepped on the end of a plank in the wooden sidewalk and it flew up or went down, and her ankle caught in the hole and she fell off the walk to the ground on the south side, sustaining injuries, painful, serious and probably permanent; impairing her general health and leaving her in a crippled and emaciated condition.
The walk was four feet wide, constructed in June, 1898, of new pine plank, two inches thick, four inches wide, nailed to three oak stringers, at each end and in the center, with the ends extending about two to three inches beyond the side stringers: at the west end, the wooden walk joined a ten-foot granitoid pavement, and the place of the misadventure was about seven feet east of the granitoid walk.
The answer was a general denial, united with a plea of contributory negligence, consisting of the allegations that she was walking in a rapid manner, hastening to meet a train, on the outer edge of the sidewalk with her two companions abreast, and that in her haste she carelessly walked too near the edge of the walk and slipped or stepped off the sidewalk.
1. The evidence introduced by plaintiff strongly tended to show that two or three boards had been detached, and were loose and had been out of the walk for a period varying in the estimates of the witnesses, from two weeks to thirty days. At the close of the evidence offered by plaintiff, the defendant presented a demurrer to the evidence which was overruled. The whole testimony was conflicting, especially in respect to the condition of the sidewalk involved; but numerous witnesses testified to the imperfect condition for a period ranging from two to four weeks or longer, preceding the accident. The defendant is not an insurer of pedestrians using its sidewalks, against accidental injuries, but it was the duty of defendant to keep its streets in a reasonably safe condition for the use of persons traveling thereon by night as well as by day. Reedy v. Brewing Ass'n, 161 Mo. 523, 61 S.W. 859; Baustian v. Young, 152 Mo. 317, 53 S.W. 921; Carvin v. St. Louis, 151 Mo. 334, 52 S.W. 210. No fixed rule can be established, as to the exact length of time the imperfection must have continued to justify the presumption of knowledge in time to have been remedied before the accident occurred, but each case must be controlled by the facts peculiar to it. Such period would necessarily vary and depend on how conspicuous the infirmity might be, and the volume of travel upon or extent of the use of the street in question. Young v. Webb City, 150 Mo. 333, 51 S.W. 709; Smith v. Thompson (Mo. Sup. Court), 69 S.W. 1040.
Measured by the well-established test that the imperative instruction prayed conceded the truth of all material facts which the evidence tended to prove, together with all inferences in favor of plaintiff that might be fairly and reasonably drawn from the evidence, this case was properly submitted for determination by the jury, of the issue whether under the testimony of plaintiff's witnesses, if defendant did not have actual notice of the dangerous condition of the sidewalk, the defect had endured for a length of time sufficient to justify the presumption that defendant had actual knowledge of it, or, in the exercise of reasonable diligence, might have known of it. Buckley v. Kansas City, 156 Mo. 16, 56 S.W. 319; Young v. Webb City, 150 Mo. 333, 51 S.W. 709.
2. At the close of all the evidence the court, of its own motion, gave one instruction, and at request of plaintiff gave six instructions; the defendant asked nineteen instructions of which the court gave twelve, but refused the remaining seven.
In the course of the trial plaintiff introduced the municipal ordinances of the defendant especially defining the duties of officials, establishing the corporate fire limits, and providing that within such territory the various owners of lots should construct and maintain in repair paved sidewalks in front of their respective lots of the width of ten feet, composed of granitoid, brick of the quality designated, paving tile or stone. Defendant objected to the admission of these enactments and now insists that their admission was fatal error, or if admissible their effect should have been confined by the instructions asked of its behalf.
Municipal corporations exercise functions of a twofold character; one class embraces those pertaining to corporate interests and proprietary or measurably private rights and are ministerial; the other class comprises those delegated to it in its governmental capacity, and involves rights and duties of a legislative or judicial nature. In the exercise of the latter, municipal corporations are supreme and act without incurring liability; but in enforcing the former, which extend to the construction and maintenance of highways, such corporations put in operation powers, ministerial and private in character, for default in the proper performance of which legal liability attaches. In the preliminary...
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