Staples v. Town of Canton

• Citation: 69 Mo. 592
• Parties: STAPLES v. THE TOWN OF CANTON, Appellant.
• Decision Date: 30 April 1879
• Court: United States State Supreme Court of Missouri

69 Mo. 592

STAPLES

v.THE TOWN OF CANTON, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Lewis Circuit Court.--HON. JOHN C. ANDERSON, Judge.N. Rollins for appellant.

Blair & Marchand for respondent.

HENRY, J.

Plaintiff, an inhabitant of the town of Canton, returning home from church on the night of January 31st, 1875, fell from a bridge over a ravine, a distance of six or seven feet, and his leg was broken by the fall. This was a suit against the town to recover damages, in which plaintiff obtained a judgment for $1,900, from which defendant has appealed. The bridge was erected by the town on one of its streets crossing the ravine, and having determined to build a bridge there, its duty to erect one reasonably safe for travel is recognized. It was sixteen feet square, but had no side-railings, and this, it is alleged, was negligence on the part of the city.

1. NEGLIGENCE.

Whether it was reasonably safe “for travel in the ordinary modes, by night as well as by day, is a practical question, to be determined in each case by its particular circumstances.” 2 Dillon Munic. Corp., ‘ 789. We are not prepared to say, as was assumed by the circuit court in the first instruction given for plaintiff, that the failure to erect side-railings to the bridge was negligence per se. It was a question which the jury should have been allowed to determine, whether at that particular place, taking into consideration its surroundings, its width and length, and the amount of travel over it, side-railings were necessary to make it reasonably safe for travel in the ordinary modes.

2. CONTRIBUTORY NEGLIGENCE.

The first instruction for plaintiff was not only vicious in this respect, but, after declaring that the failure to place railings along the sides of the bridge was negligence on the part of the city, told the jury that, “if the night was so dark as to prevent plaintiff from seeing his way safely across, and in consequence thereof he fell from the bridge into the ditch, &c., the jury should find for him.” This precluded the jury from any consideration of the defense relied upon, that the plaintiff was guilty of contributory negligence. If it was so dark that plaintiff could not see his way over the bridge, and, in consequence of that darkness, he fell from the bridge, is it true that, fully informed of the condition of the bridge, as was clearly established, the plaintiff was, of course, entitled to recover? Did the facts that there were no siderailings, and...