Wilson v. City of St. Joseph

• Citation: 123 S.W. 504,139 Mo.App. 557
• Parties: JEANETTE WILSON, Respondent, v. CITY OF ST. JOSEPH, OWEN E. DIGAN AND JOHN KALLAUMER, Appellants
• Decision Date: 06 December 1909
• Court: Kansas Court of Appeals

123 S.W. 504

139 Mo.App. 557

JEANETTE WILSON, Respondent, v. CITY OF ST. JOSEPH, OWEN E. DIGAN AND JOHN KALLAUMER, Appellants

Court of Appeals of Missouri, Kansas City

December 6, 1909

Appeal from Buchanan Circuit Court.--Hon. Lucian J. Eastin, Judge.

Reversed and remanded.

W. B Norris and O. E. Shultz for appellants.

(1) Plaintiff's instruction one, is erroneous for the following reasons: It does not require the jury to find that the defendant had notice of the defect for a sufficient length of time to enable the city to have a reasonable length of time in which to repair the same. It does not require the jury to find that the plaintiff had served a written notice upon the city within sixty days after her injury, notifying the city of her injury, and that she would bring suit for the same. Ball v. Neosho, 109 Mo.App. 693; Badgley v. St. Louis, 149 Mo. 134; Young v. Webb City, 150 Mo. 333; Baustin v. Young, 152 Mo. 325; Ballard v. Kansas City, 126 Mo.App. 541. (2) Plaintiff's instruction three, is erroneous for the following reasons: Defendant's instruction tells the jury that the exercise of ordinary care did not require plaintiff to select the sidewalk that was safest to travel on, but that she had a right to infer that the walk was reasonably safe. This is not the law where plaintiff knew of the defect, and which law was so declared by the court's instruction thirteen, given on behalf of defendant. These two instructions conflict, and for that reason error was committed. This instruction purports to contain all the elements necessary for a verdict, and tells the jury to find for the plaintiff, if the washout was not protected by lights and guards, thus telling the jury as a matter of law that the washout made the street dangerous, and that it was the duty of the city to guard or protect it from the public. That question should have been submitted to the jury. Because it requires that defendant should have provided both lights and guards. Cowan v. City of Kansas, 108 Mo. 394; Baker v. Railway, 122 Mo. 550; Thumel v Dukes, 82 Mo.App. 55; Stone v. Hunt, 94 Mo 480; Frederick v. Allgair, 88 Mo. 603; Garber v. Kansas City, ___ Mo.App. 195; Jackson v. Kansas City, 106 Mo.App. 57; Fusili v. Railway, 45 Mo.App. 535; Weller v. Railway, 164 Mo. 180; Campbell v. Stanberry, 85 Mo.App. 159.

Sidney S. Wilson and C. W. Meyer for respondent.

(1) Plaintiff's instruction No. 1 is correct, because: 1. It properly declares the law; It should be taken in connection with plaintiff's instruction No. 2, which also covers the point appellants complain is omitted in instruction No. 1. Yocum v. Trenton, 20 Mo.App. 489. (2) The defect had existed long enough for it to be presumed as a matter of law that the city had notice and time to remedy the defect. It is not necessary to embody all the elements of plaintiff's grounds for recovery in one instruction, especially when all the instructions, taken together, properly declare the law. Liese v. Meyer, 143 Mo. 560. (3) It was not obligatory on plaintiff to ask for an instruction covering the question of statutory notice, since: Plaintiff's evidence of the service of such a notice was not contradicted, the defense virtually admitting that such notice had been served. Bank v. Hatch, 98 Mo. 378; Stove Co. v. Sinclair, 10 Mo.App. 593. (4) If defendant wished an instruction on this point it should have asked it. Construction Co. v. Railroad, 71 Mo.App. 629; Hooper v. Railway, 125 Mo.App. 332; Tyler v. Larimore, 19 Mo.App. 458. (5) Plaintiff's petition states a cause of action, and defendant's objection to the introduction of evidence was properly overruled. Hurst v. Ash Grove, 96 Mo. 172 (and authorities there cited).

OPINION

JOHNSON, J.

Plaintiff sued the city of St. Joseph, a city of the second class, to recover damages for personal injuries alleged to have been caused by the negligence of defendant in failing to maintain one of its public streets in proper repair. Verdict and judgment were for plaintiff and the cause is here on the appeal of defendant.

The injury occurred about ten o'clock p. m. October 31, 1908, on Edmond street between Twentieth and twenty-first streets. Accompanied by two of her children, plaintiff, on her way home, was walking eastward on the sidewalk space on the south side of Edmond street, when she stepped into a hole, fell and received the injuries of which she complains. The street was not paved but had been graded during the summer. The sidewalk space had been graded at the same time but the sidewalk had not been laid and two holes had been formed by erosion in the sidewalk space about the middle of the block and within the intersection of the alley with the street. These holes were close together and each was about eighteen inches deep. Plaintiff states she was not aware of these defects and did not discover them because of the darkness. She thinks she fell into the west one of these holes but is not positive about this fact. In falling, one of her hands struck against the iron top of a sewer inlet near the west hole and was injured.

The petition alleges "that some time prior to the 31st day of October, 1908, two large holes formed in said Edmond street, said holes being located on the south side of Edmond street, between Twentieth and Twenty-first streets, about the middle of the sidewalk space immediately in front of the entrance to the alley opening upon the south side of Edmond street between Twentieth and Twenty-first streets. That both of said holes were large and deep, likely to catch the feet of passing pedestrians, causing such pedestrians to stumble and fall, all of which facts were well known to the defendants herein, or might have been well known to them by the exercise of reasonable care and caution on their part, but plaintiff alleges that defendants carelessly and negligently allowed said holes to remain in an open and dangerous condition.

"Plaintiff further states . . . she stepped into one of the holes which defendants had carelessly and negligently suffered to remain in said street, and fell to the bottom of said hole, striking her hands and body against the bottom and sides of said hole, and against the ground and against the iron top of a sewer inlet adjacent to said holes."

The petition was not assailed by demurrer or motion but at the trial defendant objected to the introduction of evidence on the ground that no cause of action is stated and the point is made here that the petition is defective for the reason that it omits the necessary averment of the fact that defendant had actual or constructive notice of the defect in time to have repaired it had reasonable care been exercised. Had this objection been raised by demurrer or motion to make more definite and certain, it would be meritorious, but it was offered too late. Where the petition is not attacked until the trial, the rule is to construe its allegations most favorably to the pleader, and if the existence of an elemental fact is not expressly stated but may be said to follow as a necessary implication from facts alleged, the petition should not be pronounced insufficient to support a verdict.

The reason of the rule is obvious. On demurrer to the petition, the defendant has the right to require the express averment of each constitutive fact in order that he may not be put to unnecessary trouble and expense or be misled to his detriment in any way, but where he fails to attack the petition and answers to the merits, he confesses that a cause of action is stated and should not be permitted to hold in reserve objections of a technical or formal nature. Such practice not only would be unfair to the plaintiff, but if allowed, would cause the trial courts to consume unnecessary time. "An objection can only be interposed at the trial, where the petition fails altogether to state any cause of action, and not to the case where a cause of action is defectively stated." [Hurst v. City, 96 Mo. 168.] We regard the statement of the cause before us as merely defective and hold that the defect was cured by answer.

Further point is made that the petition does not sufficiently aver the giving of the notice required by section 5724, Revised Statutes 1899. It is alleged "that on the 28th day of November, 1908, she did have served on the city of St. Joseph, and on the mayor of said city of Saint Joseph a notice, advising said mayor and city of her...