Boland v. City of Kansas

Hall, J. — The defendant assigns two grounds for the reversal of the judgment in this case, i. e., the refusal by the circuit court of the demurrer to the evidence and of instruction number four asked by it. In support of the ground based on the refusal of the demurrer to the evidence, the defendant urges that, under the facts in this case, it was negligence as a matter of law for the plaintiff to attempt to pass over the sidewalk, and that, therefore, the plaintiff could not recover. In other words, the defendant’s position is that the act of1 the plaintiff in attempting to pass over the sidewalk was of such a character as per se to constitute negligence on her part. I. The question, whether or not a given act is an act of negligence is a question of law, where the act is of such a character that the judgment of all sensible men would condemn it as such, but where the judgment of sensible men could reasonably lead to different conclusions on the question, it is a question of fact. Petty v. Railroad, 88 Mo. 306; Norton v. Ittner, 56 Mo. 351; Mauerman v. Siemerts, 71 Mo. 104. We think that the court correctly refused to declare that, as a matter of law, the plaintiff’s act in attempting to cross along or over the sidewalk was negligence. In the first place, it was not admitted that the plaintiff knew the condition of the sidewalk. It is true that there was evidence tending to show that the plaintiff had such knowledge, .actual or [15] constructive; but -whether she had or not was a question for the jury. And in the next place, even if such knowledge on plaintiff’s part had been admitted, the attempt on her part would not have been negligent as a matter of course, because sensible men could reasonably reach different conclusions on the question as to whether or not the attempt was negligent. The attempt, •even with knowledge on her part, the jury alone under proper instructions could have pronounced negligent. The question would have remained a question of.fact. Loewer v. City of Sedalia, 77 Mo. 444, and cases cited. II. The evidence showed that the plaintiff had often walked over the sidewalk in controversy prior to the accident; from this evidence the jury could have reasonably inferred, notwithstanding the express denial of plaintiff, that she knew the condition of the sidewalk, and also that she could have known its condition by the use of ordinary care. Under this evidence it was for the jury to have said whether or not the plaintiff, in attempting to cross over such sidewalk under all the other circumstances in evidence, instead of the opposite sidewalk which was in good condition, acted negligently. The law did not, as we have seen, pronounce the plaintiff’s act negligent, but neither did it pronounce such act prudent; the facts in evidence were such as to have warranted the jury in finding the act negligent. This is so held expressly in Bassett v. City of St. Joseph, 53 Mo. 290, 303. It is there said.: “If there was a plain way to travel, which was safe, and the plaintiff could have traveled over it, and she voluntarily chose to take a hazardous way, which was known or could have been known by her with ordinary diligence to be hazardous * * * , at least these are facts from which contributive negligence might be found by the jury. All of these facts were proper to be submitted to the jury.” This case, as respects this question, has not been criticised adversely or overruled by our supreme court in any later case. On the contrary, the same doctrine is laid down in Loewer v. City of Sedalia, 77 Mo. [16] 446, in these words : “It is lor the jury to say whether, under all the circumstances, he (plaintiff) was guilty of negligence in not traveling in the space commonly used by vehicles.” For this reason, the defendant had the right to have submitted in a clear and direct manner the question, as to whether or not the act of plaintiff in attempting, under the facts mentioned, to pass along the sidewalk was in and of’itself negligence. This question goes solely to the character of the act, and not at all to the manner in which the act was performed. This question is, was the act of attempting to pass along the sidewalk negligence of itself, without regard to the manner in which the attempt was made ? In other words this question is not, did the plaintiff use reasonable and ordinary care while attempting to pass along the sidewalk? But is, did the plaintiff by attempting to pass along the sidewalk act negligently ? This question is based upon the impossibility of the plaintiff having prudently passed along the sidewalk, because a negligent act cannot be performed in a prudent manner. The instruction asked by the defendant, and refused by the court, simply put this question to the jury, as we understand it. It did not tell the jury that if they found the facts mentioned in it, i. e., that there was a good and safe sidewalk on the opposite side of the street, and that the plaintiff knew, or by the exercise of ordinary care and prudence might have known, the unsafe and dangerous condition of the sidewalk in controversy, they should find for the defendantbut it told them that, if they found those facts and /that the plaintiff “did carelessly and negligently attempt to pass along the sidewalk complained of and was injured,” then they should find for the defendant. This instruction in effect told the jury that if they believed the plaintiff’s attempt, under the facts mentioned, was negligent and careless, they should find.for the defendant. The instruction was, therefore,- proper and should have been given. The substance of this instruction was not contained [17] in any instruction given in tlie case. No other instruction asked by the defendant referred to the plaintiff ’ s negligence, and only two of plaintiff ’ s instructions did so. They were numbered two and three. They did make the plaintiff’s recovery depend upon the use by her of ordinary and reasonable care, but by the terms of the instructions the care was while she was walking on the sidewalk and not the care in attempting at all to do so. For the error indicated the judgment is reversed and the cause remanded. All concur; Ellison, J., in the result.