Williams v. City of Hannibal

• Decision Date: 13 May 1902
• Citation: 94 Mo. App. 549,68 S.W. 380
• Parties: WILLIAMS v. CITY OF HANNIBAL.
• Court: Missouri Court of Appeals

68 S.W. 380

94 Mo. App. 549

WILLIAMS v. CITY OF HANNIBAL.

Court of Appeals at St. Louis, Missouri.

May 13, 1902.

MUNICIPAL CORPORATIONS — INJURIES — DEFECTIVE SIDEWALK — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. Where the stringers of a sidewalk in a city had rotted, and sunk into the earth so as to let the boards down on the surface, so that they rested on the earth, and not on the stringers, and had become partially imbedded in the earth, the walk was per se defective on account of the decayed condition of the boards and of the inevitable uneven displacement of the earth.

2. Where plaintiff was traveling over a defective sidewalk, as he was in the habit of doing daily, and without suspecting danger, and his foot was caught by a plank, made to fly up without his agency, there was no question of contributory negligence to be submitted to the jury.

3. Where, in an action for injuries sustained by a defective sidewalk, the court charged that, in order for plaintiff to recover, the defective condition, if any, must have existed such a length of time prior to the time plaintiff was injured that the city, in the exercise of ordinary care, could have discovered such defective condition, and repaired the same before the time plaintiff claimed he was injured, and the evidence showed that the walk had been in a bad condition for years, and that the city had a street inspector, who was required by the ordinance to make a monthly inspection of all sidewalks in the city, defendant was not prejudiced by the refusal of the court to charge that, if persons passing along the walk failed to observe its bad condition, it could not be assumed that the city officials should have made such observation, and, unless defendant was aware of such condition, or could have become aware of it by the exercise of ordinary care, the city was not liable, and another instruction on the subject of notice.

Appeal from Hannibal court of common pleas; Eby, Judge.

Action by Leslie Williams against the city of Hannibal. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. R. Smith, for appellant. George W. Whitecotton, for respondent.

BLAND, P. J.

The plaintiff, an infant, who sues by his next friend, on the 3d day of June, 1901, while rightfully traveling on a sidewalk on the south side of Bates street, in the city of Hannibal, was tripped by a loose board in the walk, and thrown to the ground, receiving a fracture of one of the bones in the lower left arm. The suit was to recover damages from the city for this injury. The answer was a general denial and a plea of contributory negligence, which plea was put in issue by a reply. The trial resulted in a verdict and judgment for the plaintiff for $200, from which the defendant city duly appealed.

The evidence is that the sidewalk on which plaintiff fell was an old one; that it was originally constructed of 16-foot grub planks about 12 inches wide by placing three of them side by side the long way of the walk, on stringers eight feet apart, to which the planks were nailed when the walk was laid; that the stringers had so decayed and sunk into the earth as to let the planks down upon the ground, and to become partially imbedded in the earth; that the ends of the planks had rotted, and the nail holes had rotted out, so that the planks were no longer fastened to the stringers; that on the day of the accident the plaintiff, in company with a companion, about the noon hour, was going from his place of employment to his home for his midday meal, walking on the sidewalk; that another boy came diagonally across the street, and stepped upon the sidewalk ahead of plaintiff, and on the end of a board immediately in front of plaintiff, which board flew up a distance of two or three inches, and that, just as the end of the board raised, plaintiff was in the act of stepping forward, and his foot caught in a bootjackshaped hole in the end of the board, throwing him forward, breaking his arm. His companion and the other boy went to his relief, and found his foot fastened in the notch in the end of the board. This notch is described as a knothole caused by the dropping out of a knot on account of the decayed condition of the board surrounding the knot. The plaintiff was in the habit of passing over the sidewalk several times daily, but had not before the injury discovered any defect in it, other than it was old, and that the ends of the boards had decayed around the nail holes. The stringers that had been placed under the boards were so far decayed and sunken into the earth that they were not observable, and could not be seen without removing the boards. The witnesses for the defendant, who had used the walk for many years, and who passed over it daily, testified that it was in a reasonably safe condition, and that they had never noticed any defects in it that indicated that it was not safe. There is no direct evidence that any of the officers of the city had actual notice of the defective condition of the walk, and none that the boards had tilted up prior to the accident. By an ordinance of the city, introduced in evidence by plaintiff, it is made the especial duty of defendant's street commissioner to inspect all sidewalks within the city at least once a month.

For plaintiff the court gave the following instructions: "(2) The burden is upon the defendant to prove to the reasonable satisfaction of the jury by the preponderance or greater weight of the evidence the defense of contributory negligence pleaded in defendant's answer, and, if it has failed to so prove and satisfy the jury, the finding must be for plaintiff on this issue; and although the jury may find that plaintiff knew of the condition of said walk, the law did not require of him the exercise of extraordinary care in traveling over said walk, but only that he exercise such care and prudence in passing over and upon said walk as a person of ordinary care and prudence...