Salmon v. Town of Trenton

• Decision Date: 02 March 1886
• Citation: 21 Mo.App. 182
• Parties: HARRIET A. SALMON ET AL., Respondents, v. TOWN OF TRENTON, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 182

HARRIET A. SALMON ET AL., Respondents, v. TOWN OF TRENTON, Appellant.

Court of Appeals of Missouri, Kansas City.

March 2, 1886

APPEAL from Grundy Circuit Court, HON. G. D. BURGESS, Judge.

Reversed and remanded.

Statement of case by the court.

The petition in this case is substantially the same as the petition in the case of Yocum v. Town of Trenton, 20 Mo.App. 498. The damages, for the recovery of which this action is brought, are damages alleged to have been caused to the female plaintiff on account of the unsafe condition of the sidewalk on the west side of Oak street, a public street in said town. The unsafe condition of the sidewalk is alleged to have consisted of this, " that at said time, and before, a large number of the planks and boards of said sidewalk got, and became, loose from the stringers, or sills to which they had been nailed and fastened."

The bill of exceptions, as shown by the appellant's abstract which is admitted by the respondent to be correct, recites that " the plaintiffs, to maintain the issues on their part, introduced evidence tending to prove the alle gations in the petition. And the defendant introduced evidence tending to disprove the allegations of the petition."

The court gave for the plaintiffs, among other instructions, the following:

" 2. In order for plaintiff to recover in this case, it is not at all necessary that she should show that the defendant or its agents or officers had actual knowledge or notice of the defects in or dangerous condition of said sidewalk if it was defective or dangerous, but if said sidewalk at said point where plaintiff alleges she received her injuries had been out of repair and in an unsafe or dangerous condition for a long space of time prior to plaintiff's so receiving the injuries complained of, then the law presumes the defendant had knowledge and knew thereof."

" 4. If the jury believe, from the evidence, that the sidewalk would have been more convenient and less dangerous to persons passing over it had the boards or planks been nailed and fastened to the sills, then it was the duty of the defendant when it learned, or by the exercise of ordinary diligence, might have known, said boards were loose or unnailed to said sills, to cause them to be fastened and nailed."

For the defendant the court gave, among other instructions, the following:

" 1. The court instructs the jury that a municipal corporation is not an insurer against accidents upon its sidewalks, nor is every defect therein, though it may cause an injury, actionable. It is sufficient if the sidewalks are kept in a reasonably safe condition for travel thereon in the ordinary modes."

" 2. Although the jury may believe, from the evidence that one or more planks in the sidewalk in question were loose from the stringers, and that the injury to plaintiff was caused thereby, still, if the jury believe, from the testimony, that the sidewalk in question at the point where the injury is alleged to have occurred, was, at the time of the injury, in a reasonably safe condition for travel in the ordinary modes upon a sidewalk, the jury ought to find for the defendant."

J. H. SHANKLIN, T. A. WITTEN, and A. G. KNIGHT, for the appellant.

I. Before defendant can be held guilty of negligence for defects in sidewalk, notice must be brought home to it, or they must be so notorious as to be observable by all. Mayor of New York v. Sheffield, 4 Wall. (U. S.) 189; Howe v. Plainfield, 41 N.H. 135; Goodnough v. Oshkosh, 24 Wis. 549; Wharton on Neg., sect. 962, et seq.; Bonine v. Richmond, 75 Mo. 437, and cases cited; Russell v. Columbia, 74 Mo. 480, and cases cited.

II. When the instructions are contradictory and inconsistent, so as to be misleading, the judgment should be reversed. Staples v. Town of Canton, 69 Mo. 592.

E. M. HARBER and GEO. HALL, for the respondent.

I. The instructions must all be considered together, and if, as a whole, they are correct, the court will not reverse, though some are faulty.

II. The instructions of defendant were properly refused, because there was no testimony to support them. No intervening negligence was pleaded. And as these refused instructions were based on an issue not made by the pleadings, they should have been refused. Capital Bank v. Armstrong, 62 Mo. 59; Mossman v. Bender, 80 Mo. 576; Benson v. Chicago & Alton Railroad Co., 78 Mo. 504.

HALL J.

The questions in this case are as to the action of the court in giving the instructions numbered two and four for the plaintiffs.

The facts of the case of Yocum v. Town of Trenton (20 Mo.App. 498), are substantially the same as the facts of this case. An instruction identically the same as instruction number two, given for the plaintiffs in this case, was given in that case. The objections made by the defendant here on account of the giving of the instructions, were made in that case. For the reasons given in that case, we hold that the defendant's objections are not well made.

The words " less dangerous," used in said instruction number four, were used in the sense of less safe. To give to words " less dangerous" their own, literal meaning would give to the instruction the effect of an assumption by the court that the sidewalk was in fact dangerous. Such assumption was not intended to be made by the court. The question as to whether the sidewalk was dangerous was submitted by the court to the jury in other instructions. The court did not intend by instruction number four, in the face of those other instructions, to declare that the...