Stout v. City of Columbia

• Decision Date: 07 May 1906
• Citation: 94 S.W. 307,118 Mo. App. 439
• Parties: STOUT v. CITY OF COLUMBIA.
• Court: Missouri Court of Appeals

94 S.W. 307

118 Mo. App. 439

STOUT v. CITY OF COLUMBIA.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

1. MUNICIPAL CORPORATIONS — NEGLIGENCE— PERSONAL INJURIES—DEFECTIVE SIDEWALKS —INSTRUCTIONS.

Where, in an action for injuries received by plaintiff, through falling into an areaway under a sidewalk in defendant city, the evidence showed that such areaway was unlighted, unguarded and insufficiently covered, the court properly instructed that plaintiff, in the absence of knowledge to the contrary, had the right to assume that the sidewalk was reasonably safe.

2. SAME—INTOXICATION OF INJURED PARTY— EFFECT.

In an action against a city for injuries received by plaintiff, through falling into an excavation, under a sidewalk, the court properly instructed that the fact that plaintiff had been drinking or was to some extent intoxicated was immaterial and no defense if the liquor had not so affected him as to prevent him from exercising ordinary care, and if he did exercise such care and would not have fallen into the excavation except for defendant's negligence in not safeguarding it, etc.

3. APPEAL — REVIEW — EVIDENCE — HARMFUL ERROR.

In an action against a city for injuries received by plaintiff, a pedestrian, through falling into an unguarded excavation under a sidewalk,

the admission over defendant's objection of evidence that other persons had fallen into the same place was harmful error.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by Albert G. Stout against the city of Columbia. Judgment for plaintiff, and defendant appeals. Reversed.

W. H. Rothwell and E. W. Hinton, for appellant. Charles J. Walker, David H. Harris, and Gillespy & Conley, for respondent.

ELLISON, J.

The plaintiff fell into an areaway in and under the sidewalk in front of a newly erected building in the city of Columbia and was injured. He brought this action for damages, charging that the city was negligent in leaving the place unprotected. He prevailed in the trial court.

There was evidence tending to show that the basement of the building was about eight feet deep and extended beyond the property line three feet into the sidewalk. That this was unlighted and unguarded and was insufficiently covered. There was also evidence tending to show that plaintiff was a farmer residing some distance from Columbia, and that on the afternoon of the day in question he was in the city on business, and, while preparing to start home late in the day, a short time after dark, he attempted to pass along the walk in front of the building, but fell into the excavation. He admitted that he had taken three drinks of liquor during the course of the afternoon, and there was evidence which tended to show that he was more or less intoxicated. Earnest complaint is made of the instructions given for plaintiff. On reading them as a series connected with those given for the defense, one is left firmly impressed with the idea that they make up a plain, fair, and complete direction to the jury. But as they have been attacked with all the force which the ability and industry of counsel can bring to bear, we will examine some of them in detail. By the second instruction, the jury were told that plaintiff, in the absence of knowledge to the contrary, had a right to assume that the sidewalk was reasonably safe. It was ruled in Sargent v. Ry. Co., 114 Mo. 348, 21 S. W. 823, 19 L. R. A. 460, that it was error, in the circumstances of that case, to instruct the jury that a passenger, who had alighted at night from a railway train, and was passing along the platform of the station, when she fell over some mail sacks thrown out of the mail car, had a right to assume the way was safe. A passenger just alighting from an incoming train and passing over a station platform where people are hurrying to and fro, where baggage, express matter, and mail are being hurriedly loaded and unloaded, is under altogether different surroundings and conditions from the pedestrian passing along the sidewalks of a city. As said in that case, "the care of the passenger must be suited to the surroundings, for this is but ordinary care." In that case, the obstruction was matter which had but a few moments before been put upon the platform, and was matter which, it might be said, should be expected to be there at such a time. But it is not expected that unguarded excavations...