Young v. City of Webb City

• Decision Date: 06 June 1899
• Citation: 51 S.W. 709,150 Mo. 333
• Parties: YOUNG v. CITY OF WEBB CITY.
• Court: Missouri Supreme Court

51 S.W. 709

150 Mo. 333

YOUNG v. CITY OF WEBB CITY.

Supreme Court of Missouri, Division No. 2.

June 6, 1899.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALK — NOTICE — INSTRUCTIONS — DEMURRER TO EVIDENCE.

1. When the evidence is conflicting, the weight thereof is for the consideration of the jury.

2. A demurrer to the evidence admits every fact proved, or which may be inferred from the testimony to be true, and should never be sustained unless the evidence, when thus considered, fails to prove some essential fact of plaintiff's case.

3. It is the duty of a city to exercise ordinary care to keep its sidewalks in a reasonably safe condition, and, if it negligently fails to do so, it is liable for injuries occasioned thereby.

4. In an action against a city to recover for an injury due to a defective sidewalk, to hold the city liable it must be shown that it had actual notice thereof, or that the defect had existed such a length of time before the injury as to justify the presumption that it did have notice of the defect in time to have repaired it before the injury.

5. The length of time necessary for the continued existence of a defect in a sidewalk to operate as constructive notice thereof to the city depends upon the surrounding facts and circumstances of each case.

6. In an action to recover for injuries sustained by reason of a defective sidewalk, evidence that the defect had existed for six weeks prior to the injury will sustain a finding by the jury that the city had timely notice of the defect.

7. An instruction "that if, from the evidence, the jury find for plaintiff, then, in estimating her damages, they will take into consideration the physical injury inflicted," is not erroneous, as assuming that physical injury was inflicted, where, under the instructions, the jury could not find for the plaintiff unless they also found that physical injuries were sustained.

Appeal from circuit court, Vernon county; D. P. Stratton, Judge.

Action by Martha J. Young against the city of Webb City. From a judgment in favor of plaintiff, defendant appealed. Affirmed.

Frank L. Forlow, for appellant. L. L. Scott, for respondent.

BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff by a fall occasioned by the defective condition of one of defendant's sidewalks upon which she was walking at the time. The suit was instituted in the circuit court of Jasper county, but the venue was subsequently changed to the circuit court of Vernon county, where, upon a trial to the court and jury, plaintiff recovered a verdict and judgment for $5,000. After unsuccessful motion for a new trial and in arrest, defendant appeals.

The plaintiff is a married woman, and was at the time of the trial, in December, 1896, 34 years of age, and the mother of six living children and one dead. At the time of the accident she lived in Vernon county, but was visiting relatives, who lived near defendant city. Prior to the accident she had always been a stout, healthy woman. On the evening of November 12, 1894, she, in company with her sister, went to Webb City to do some shopping, and while they were walking west on Main street, one of the principal thoroughfares of said city, after dark, plaintiff's foot slipped in a hole in the sidewalk, which was constructed of wood, causing her to fall heavily upon the walk, producing an impacted fracture of the right thigh bone, — that is, a fracture of the neck of the thigh bone, — by reason which she was confined to her bed for over six months, suffered great pain always thereafter, the leg being shortened, and the injury permanent. The evidence tended to show that the hole in the sidewalk into which plaintiff stepped had been there for about six weeks prior to the accident. At the close of plaintiff's evidence defendant interposed a demurrer to the evidence, which was denied, and it duly excepted.

At the close of all the evidence, the court, at the instance of plaintiff, over the objection of defendant, instructed the jury as follows: "(1) The court instructs the jury that it is by law made the duty of defendant to keep its sidewalks upon its streets in a reasonably safe condition for the use of pedestrians using the same for travel; and if you shall believe from the evidence that the defendant city permitted its sidewalk on the street and at the place on said street mentioned in plaintiff's petition to become out of repair, and in a dangerous condition for travel, and to so remain in a dangerous condition and out of repair after it knew, or by the exercise of reasonable care and caution could have ascertained, the defective and dangerous condition of said sidewalk, and the plaintiff, while passing along said sidewalk, at the place mentioned in plaintiff's petition, was, on account of said defective and dangerous condition of said sidewalk, without fault or negligence on her part, injured thereby, your verdict should be for the plaintiff. (2) The court instructs the jury that if, from the evidence, they find for the plaintiff, then, in estimating her damages, they will take into consideration the physical injury inflicted, whether temporary or permanent, and the bodily pain and mental anguish endured, if any, by plaintiff; and in assessing her damages you shall assess them at such sum as you shall believe from the evidence will reasonably compensate her for said injury received, together with the suffering caused by reason of said injury, and in a sum not to exceed twenty thousand dollars, as asked for in plaintiff's petition." And to the decision of the court in giving said instructions, and each of them, defendant then and there at the time excepted.

The following instructions were given at the request of defendant: "(3) The court instructs the jury that, before the duty is placed upon the defendant to keep the sidewalk in reasonably safe condition, it devolves upon the plaintiff to show that said sidewalk was a part of a street that had been dedicated to the public by the owner of the land over which it passes, and said dedication accepted by the city; but such acceptance need not be shown by any formal order of record, but may be shown by such other acts as may show that the defendant recognized and treated the same as one of its streets, or the plaintiff must show that said street has been used by the public for the space of ten years...