Ryan v. Kansas City

• Decision Date: 01 October 1910
• Citation: 134 S.W. 985,232 Mo. 471
• Parties: RYAN v. KANSAS CITY et al.
• Court: Missouri Supreme Court

134 S.W. 985

232 Mo. 471

RYAN v. KANSAS CITY et al.

Supreme Court of Missouri.

October 1, 1910.

In Banc. For majority opinion, see 134 S. W. 566.

KENNISH, J.

I cannot concur in the opinion of the court, or in the concurring opinion, delivered in this case, for the reason that the law, as declared therein, is not only in conflict with the former decisions of this court and the current of authority upon that subject, but also because, under the facts of this case, the law as thus announced deprives a traveler upon a sidewalk in a city of the benefit of a principle of law, the existence of which both opinions concede. Heberling v. Warrensburg, 204 Mo. 604, 103 S. W. 36; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Hitt v. Kansas City, 110 Mo. App. 713, 85 S. W. 669; Langan v. Railway Co., 72 Mo. 392; Porter v. Railway Co., 60 Mo. 160; Mathews v. City of Cedar Rapids, 80 Iowa, 459, 45 N. W. 894, 20 Am. St. Rep. 436; Earl v. City of Cedar Rapids, 126 Iowa, 361, 102 N. W. 140, 106 Am. St. Rep. 361; Kaiser v. Hahn, 126 Iowa, 561, 102 N. W. 504; Ryan v. Foster, 137 Iowa, 737, 115 N. W. 595, 21 L. R. A. (N. S.) 969; Lerner v. Philadelphia, 221 Pa. 294, 70 Atl. 755, 21 L. R. A. (N. S.) 614, and authorities cited and reviewed in the annotation of that case; Elliott on Roads & Streets, p. 678.

The importance of the subject and the conviction that the court has taken an erroneous view of the law requires, and is my apology for, a brief discussion of this case and the cases relied upon and referred to in the majority opinion.

The facts of this case, as well as the instructions given on behalf of the city and of which complaint is made on this appeal, are stated fully and fairly to the appellant in the opinion of the court herein. However, as appellant complains of error in the giving of four separate instructions, and as defendant's instruction numbered 10 D more sharply presented to the jury the alleged error complained of, I shall set that instruction out and use it as a basis for what is here said, rather than instruction numbered 4 D, which is taken as typical and set out in the opinion of the court. It is as follows: "The jury are instructed that it was not necessary for the plaintiff to have had actual knowledge of the excavation in the street, if any, for such knowledge to be imputed to her. Although the plaintiff may not have known of the excavation, if any, yet, if she should, by the exercise of ordinary care, have discovered the condition of the street at the point in question and should, by the exercise of ordinary care, have avoided the same, then the jury will find for the defendants."

It is conceded by all that it is the duty of the city to keep its sidewalks in a reasonably safe condition for travel, and that the pedestrian has the right to rely upon the presumption that the city has done its duty and that the sidewalk is in a reasonably safe condition. Notwithstanding the foregoing presumptions of the law, recognizing on the one hand the duty of the city and on the other the presumption in favor of the footman, under which, as said, he may "walk by a faith justified by law," this court approves an instruction which told the jury that, although the plaintiff did not know of the excavation in the sidewalk, "yet if she should, by the exercise of ordinary care, have discovered the condition of the street at the point in question," and by like care could have avoided the same, the jury should find for the defendants.

It is apparent, upon a mere statement of this proposition, that the presumption upon which plaintiff was entitled to rely was entirely ignored, and she stood before the jury not protected by the presumption that the walk was safe, but, as a condition to her right of recovery, was required to have used ordinary care to have discovered the pitfall which the city had negligently permitted to remain in the sidewalk in the nighttime, unguarded by signal or barrier. This instruction, when considered in connection with the presumption upon which plaintiff had the right to rely, leads to the unreasonable result that the plaintiff might travel the street, relying upon the presumption that it was in a reasonably safe condition while, at the same time and place, she was required to use ordinary care to discover whether or not it was in fact in a reasonably safe condition. The answer to such an anomalous doctrine was well stated in the unanimous opinion of division No. 2 of this court in Perrette v. Kansas City, 162 Mo., loc. cit. 250, 62 S. W. 451, in which Burgess, J., speaking for the court, said: "It is asserted that the action of the court in refusing the sixth instruction asked by the defendant was reversible error. The argument is that, although defendant may have been guilty of negligence in failing to keep its sidewalk where the accident occurred in a reasonably safe condition for travel, yet, if plaintiff failed to use ordinary care in discovering the condition of the sidewalk, and by reason of such failure he was hurt, he was not entitled to recover. The law, however, did not impose upon plaintiff the duty of looking for defects in the sidewalk, which, in the absence of knowledge of its dangerous condition, he had the right to assume was reasonably safe for travel; hence no error was committed in refusing this instruction."

And in the case of Hitt v. Kansas City, 110 Mo. App. 713, 85 S. W. 669, in discussing the same subject, the court said: "It is insisted that plaintiff had ample opportunity for knowledge of the condition of the sidewalk to have avoided the injury. If the fact that the place was well lighted is to be taken as conclusive evidence against her, then defendant's contention is correct; otherwise, it is not. That is all the evidence in the case that would have justified the jury in finding that the plaintiff was not in the exercise of ordinary care. If she had looked for the defect, she would undoubtedly have seen it. But she was not required to do this. She had the right, in the absence of knowledge to the contrary, to feel secure, presuming that the city had performed its duty in keeping its sidewalks safe; and the fact that the place was well lighted was no evidence of itself, unsupported by any other fact, showing want of care or of negligence on her part. * * * If she had had knowledge of the condition of the sidewalk before she stepped into the hole, there would have been no such presumption. But, so long as it was shown that the defect was there and unknown to plaintiff, she had the right to presume that it was safe."

In Langan v. Railway Co., 72 Mo. 392, in discussing the question of alleged contributory negligence upon the part of the plaintiff, this court said: "Negligence is not imputable to a person for failure to look out for a danger, when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended."

In the case of Heberling v. Warrensburg, 204 Mo. 604, 103 S. W. 36, Judge Gantt, voicing the unanimous opinion of division No. 2 of this court, condemned an instruction containing the same identical doctrine as is approved in the opinion in this case, and upon facts, so far as the principle of law is concerned, not at all dissimilar from the facts of this case. As concisely stated in the syllabus of that case, the court held: "It is not the duty of a person traveling on a public street to examine...