Waters v. Kansas City

• Decision Date: 05 May 1902
• Citation: 68 S.W. 366,94 Mo. App. 413
• Court: Missouri Court of Appeals
• Parties: WATERS v. KANSAS CITY.

68 S.W. 366

94 Mo. App. 413

WATERS v. KANSAS CITY.

Court of Appeals at Kansas City, Missouri.

May 5, 1902.

MUNICIPAL CORPORATIONS — SIDEWALKS — PERSONAL INJURIES — HIDDEN DEFECTS — SNOW — INSTRUCTIONS.

1. It was no defense to an action for injuries from a defective sidewalk that the defect was such that it would have been seen and avoided if it had not been covered by snow.

2. In an action for injuries from a defective sidewalk, an instruction assuming that plaintiff "was caused to slip and fall" by reason of snow was erroneous, the only evidence regarding snow being that it concealed the defect.

3. In an action for injuries from a defective sidewalk, instructions based on the idea that, if the defects were obvious, it was plaintiff's

duty to avoid them, and assuming that they were obvious, were erroneous.

Error to circuit court, Jackson county; J. H. Slover, Judge.

Action by Martha Waters against Kansas City. From a judgment for defendant, plaintiff brings error. Reversed.

Fyke, Yates, Fyke & Snider, for plaintiff in error. R. B. Middlebrook, for defendant in error.

ELLISON, J.

This action is for personal injuries said to have been sustained by plaintiff by reason of defects in one of defendant's sidewalks. The verdict and judgment in the trial court was for defendant. The evidence was short, and tended to show a defective street crossing connecting the sidewalks, in that boards were out of it. It showed also that snow was on the ground, and at the time of the accident was still falling. The snow at least partially concealed the defect in the crossing. Plaintiff was traveling along the walk, and in stepping off of the walk onto the crossing stepped into the vacant place made by the absence of the boards. This threw her forward and over cross-pieces, which threw her to the ground. Thereby she broke her arm, and was otherwise injured. The court gave 10 instructions for defendant. We regard the objections made by plaintiff to some of them as being well taken. It is evident that the defendant was trying to protect itself from liability for the defective crossing by reason of the snow covering it, and it is clear that an attempt was made to impress the jury with the idea that, if the defect was such as it would have been seen and avoided if there had not been snow on it, then defendant was not liable. It would be strange if a city could excuse itself from liability for negligence by so usual an occurrence as an ordinary snow falling on the...