Walker v. City of St. Joseph
| Decision Date | 23 May 1921 |
| Docket Number | No. 13726.,13726. |
| Citation | 231 S.W. 65 |
| Parties | WALKER v. CITY OF ST. JOSEPH. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.
"Not to be officially published."
Action by Orva Earl Walker against the City of St. Joseph. There was a verdict and judgment for defendant, and plaintiff moved for a new trial. The motion was sustained, and defendant appeals. Affirmed.
Alva F. Lindsay, C. W. Meyer, and A. G. Hamm, all of St. Joseph, for appellant.
O. E. Shultz, of St. Joseph, for respondent.
Plaintiff brought this action for damages alleged to have been caused by the negligence of the city in permitting a hole to exist in the sidewalk space of a public street and immediately against the edge of a narrow board sidewalk thereon upon which plaintiff was walking in the nighttime and, while doing so, stepped into said hole and fell and injured his arm.
There was a verdict and judgment for the defendant city, and the court sustained plaintiff's motion for a new trial, assigning, as a reason therefor, error in giving defendant's instruction No. 1, which, abstractly and not in connection with any other point or matter in the case, told the jury that the mere fact plaintiff was injured by falling in the street at the point in question was no evidence that the city was negligent. The instruction does not come up to the standard of the instruction approved in Coffey v. City of Carthage, 186 Mo. 573, 585, 85 S. W. 532, and similar cases, since it omitted the words "of itself." It is true the rule of law is that the mere fact that plaintiff fell does not warrant a recovery against the city. Carvin v. City of St. Louis, 151 Mo. 334, 345, 52 S. W. 210; Lee v. Jones, 181 Mo. 291, 79 S. W. 927, 103 Am. St. Rep. 596. But it is a very different thing to tell the jury that the mere fact that plaintiff was injured by falling in the street is no evidence of negligence, since the question of whether the defect in the street was likely to cause such an accident is one of the matters to be considered by the jury in determining whether or not the street at that point was or was not reasonably safe. Orris v. Chicago, etc., R. Co., 279 Mo. 1, 214 S. W. 124, 126, 127; Walker v. Quincy, Omaha, etc., R. Co. (Sup.) 178 S. W. 108, 110. The trial court, therefore, correctly ruled that the giving of such instruction was error, and the action in sustaining the motion for new trial cannot be disapproved.
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