Walker v. City of Kansas

• Decision Date: 10 February 1890
• Citation: 12 S.W. 894,99 Mo. 647
• Parties: WALKER v. CITY OF KANSAS.
• Court: Missouri Supreme Court

12 S.W. 894

99 Mo. 647

WALKER v. CITY OF KANSAS.

Supreme Court of Missouri.

February 10, 1890.

MUNICIPAL CORPORATIONS — BRIDGES.

A city which opens a bridge for public travel is liable for injuries caused by the defective condition of one side of the bridge, though the other side is perfectly safe for travel. Overruling Tritz v. City of Kansas, 84 Mo. 632.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by William Walker against the City of Kansas, for damages for injuries received by him by a fall from one of defendant's bridges. From a judgment in favor of plaintiff, defendant appeals.

R. W. Quarles and W. A. Alderson, for appellant. Jewell & Thompson, for respondent.

BRACE, J.

The plaintiff recovered judgment in the circuit court for $5,000 damages for injuries received by him by a fall from a bridge across a ravine in Flora avenue, in said city. The only errors assigned are the refusal of the court to give instruction No. 1 for the appellant, and the giving of instruction No. 2 for the respondent, as follows: "The appellant offered the following instruction, which was refused: `(1) You are instructed that negligence is the omission to discharge a duty, and you are instructed that it was not necessarily the duty of the defendant to keep both sides of said bridge complained of in a safe condition, but it was its duty only to keep as much thereof in such condition as was necessary to render it reasonably safe for travel; and you will find for the defendant, although you may believe that one side of said bridge was defective, and in a dangerous condition, provided you further believe from the evidence that only one side or a part of said bridge was in such condition, and that the remaining part was sufficient and reasonably safe and convenient for travel thereon.' At the request of the respondent, the court gave the following instruction: `(2) In determining the question as to the safety of the bridge in question, and the necessity for a railing or other guard to said bridge or its abutments, or the necessity of remedying the unevenness in the lengths of the planks constituting the floor of said bridge, the jury will take into consideration the width and height of the bridge, its situation, and the danger, if any, incident to falling therefrom.'"

1. There was no error in refusing appellant's instruction, by which the court was asked to declare, as matter of law, that, although one side or part of the bridge was in a dangerous and unsafe condition, yet, if the remainder was sufficient and reasonably safe and convenient for travel thereon, the plaintiff could not recover. The defect in the bridge was that the ends of the planks on the west side were not even, some projecting from one to two feet further out than the others, and that there was no railing on that side. Originally a railing had been put up on each side, but several months before the accident that on the west side had been taken away, and of its absence the defendant had notice. It was while pursuing the usual course of travel on the west side of the street, on a dark and slippery night, that the plaintiff reached the north-west corner of the bridge going south, and, in endeavoring to cross over it, fell off on the west side at or near that corner, and was injured. There was some evidence tending to show that at the time of the...