Small v. Kansas City

• Decision Date: 22 December 1904
• Citation: 185 Mo. 291,84 S.W. 901
• Parties: SMALL v. KANSAS CITY.
• Court: Missouri Supreme Court

84 S.W. 901

185 Mo. 291

SMALL v. KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

DEFECTIVE SIDEWALKS—PERSONAL INJURIES— NOTICE OF DEFECT—EXCESSIVE DAMAGES.

1. In an action for injuries from a defective sidewalk, where the evidence was undisputed that the hole in the walk had existed for more than a year, and the walk inspector had known of it for more than three months, it was proper to instruct the jury: "It is not necessary that plaintiff shall prove that the city had actual notice of the defective condition of the walk in question. It is sufficient if the circumstances show that by the exercise of reasonable diligence and attention to the condition of the walk it would have discovered such defects; and, if such walk remained in a defective condition for a long time prior to the injury, then knowledge of such condition may be inferred from these facts."

2. Under Kansas City Revised Ordinances, § 843, making it the duty of the board of public works "to cause all sidewalks to be inspected at least once every three months, and, whenever any sidewalk is found to be in need of repair, to notify the owner of the abutting property to do so, and, if he fails so to do, to have it done by the city contractor," knowledge of a defect in a walk by the sidewalk inspector is notice thereof to the city.

3. Where it appeared that plaintiff before the injury was a strong and healthy woman; that the injury caused a laceration of the cervix; that she has lost over 20 pounds in weight since the injury; that she has suffered, and probably will always suffer, much pain, and will probably never be well again—a verdict for $5,000 damages is not excessive.

Appeal from Circuit Court, Johnson County; W. L. Jarrott, Judge.

Action for personal injuries by Lutie G. Small against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

R. J. Ingraham and L. E. Durham, for appellant. Hardin & Taylor, for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries received by the plaintiff on December 25, 1901, about 8 o'clock p. m., in consequence of stepping into a hole in the plank sidewalk on the west side of Woodland avenue, about 63 feet north of Forty-Second street, in Kansas City. The petition is in the usual form in such cases, and the answer is a general denial, with a plea of contributory negligence. The plaintiff recovered a judgment for $5,000, and the defendant appealed.

The facts are these: Pursuant to an ordinance approved December 8, 1898, the city constructed a plank sidewalk on the west side of Woodland avenue from the south side of Thirty-Ninth street to the north side of Forty-Second street. The walk was made of planks not less than 5 feet long 6 inches wide, and 2 inches thick, laid upon three stringers 4 by 4 inches. The hole in the sidewalk which caused the plaintiff's injuries was 17 or 18 inches long, about 8 inches wide, and from 2½ to 5½ or 6 inches deep; the earth below the sidewalk sloping at that point. At the time of the accident there was no light at or near the place. The plaintiff is a married woman, 36 years of age, the mother of five children, and was living with her husband and children at No. 4215 Highland, which is a short distance south of Forty-Second street, and a block west of Woodland avenue; and had been living there for about nine months before the accident. She had passed along the sidewalk aforesaid about once a month during said nine months, in going to the street cars, at Thirty-Eighth and Woodland avenue, on her way to the business part of the city, but she had always theretofore gone in the daytime, and she says she had never noticed the hole in the sidewalk, and did not know it was there. At about a quarter after 7 o'clock on the night of December 25, 1901, she left her said home, with three of her daughters and three other young ladies, to go to a dance at Thirty-Eighth and Woodland avenue. While walking along the said sidewalk, she stepped into said hole with her left foot, and in consequence was thrown forward on the walk, and in falling she struck a portion of her body partly on the edge of the sidewalk and partly on the bank; her foot was caught in the hole, her rubber shoe was pulled off, and she was internally injured. She got up, or was helped up, and after a short time was able to walk the remaining four blocks to the place where the dance was going on, and remained there for about three-quarters of an hour, when she returned home and went to bed. On the 27th of December, as she says, or on the 29th as her physician, Dr. Doyle, says, she sent for Dr. Doyle, and he treated her until January 31st, making about nine visits to her during that time. Dr. Doyle says that when he was first called to see the plaintiff she was suffering great pain in the uterus and ovaries and in her back and head and had a profuse hemorrhage from the womb; that on December 29th he "curetted" the uterus, and then packed it, to stop the hemorrhage, and afterwards used tincture of iodine and carbolic acid for the same purpose; that he again treated her on January 2d, 4th, 11th, 14th, 25th, and 31st; that he prescribed a support for her to wear, which she has used since; that he did not see her again until about 10 days before the trial of this case, which was on the 19th of June, 1902, when he examined her with Dr. Hardin; that she has a laceration of the cervix and enlargement and prolapsus of the womb, which is now verging on the chronic stage; that it is possible she will suffer the balance of her life, and that, in order to cure her, it would be necessary to perform laparotomy, which is a very dangerous operation, or to "curet" the uterus. Dr. Hardin testified to substantially the same effect, and in addition said she had other troubles resultant from the fall. Drs. Anderson and Schofield were appointed by the court to make a physical examination of the plaintiff, and were called as witnesses by the defendant, and their testimony showed that the plaintiff is in a bad...