Culverson v. City of Maryville

Ellison, J. Plaintiff recovered a judgment against defendant as damages for injuries received by her while walking along one of defendant’s streets after night. Defendant’s appeal is based on alleged errors in instructions. We may say now that the principles of law contended for by defendant need not be controverted, may be. conceded, and yet the judgment be affirmed. The plaintiff was injured by stepping off the end of a sidewalk at a point where there was a fall, or “dfc>p-off” in the walk, the connection between the upper and lower portion being made by steps. The evidence establishes plaintiff’s injury, and the only question we can discover in the ease relates to the action of the court on the instructions. Eor the plaintiff, the court instructed that it was the duty of defend [347] ant to keep its streets in a reasonably safe condition for travel, by night as well as by day, and submitted to the jury the question whether the place in controversy was a dangerous and unsafe place, and whether plaintiff was in the exercise of ordinary care and prudence at the time of her injury; that she had the right to assume she could use the street in safety by such care and prudence. There was evidence tending to show that plaintiff was familiar with the walk at the point where the defect was. On this head the court instructed that, “the law did not require of her the exercise of extraordinary care while passing over it on the evening in question, but only such care and prudence, while passing over the same, as an ordinarily prudent person would exercise under like circumstances, and while such knowledge on her part may be taken into consideration in determining whether she was negligent or not, yet such knowledge alone would not be sufficient to establish such fact.” This, we think, was a proper declaration of law. It has been repeatedly decided in this state that the fact of a pedestrian being acquainted with a defect in a sidewalk, and that there was a walk on the other side of the street free from the defect, will not prevent his recovery for injuries received by reason of the defect on the side he has chosen to go upon. In other words, such fact-swill not of themselves establish contributory negligence on his part as á matter of law, but may be weighed by the jury in their consideration of the question of such contributory negligence. Taylor v. Springfield, 61 Mo. App. 263; Maus v. Springfield, 101 Mo. 613; Flynn v. Neosho, 114 Mo. 567. Instructions were given for the defendant which presented to the jury in plain terms the duty which the city owed to the public and the care and prudence which plaintiff was required to exercise. The court refused [348] instruction number 3, offered by defendant, which stated that if the sidewalk was in a reasonably safe condition for persons to pass over by the use of care and caution, and that the immediate cause pf injury to the plaintiff was that she stepped over the steps which had been constructed in such walk, without remembering or noticing that they were there, the verdict should be for defendant. The substance of this instruction was so fully covered in those given for defendant that it was not error to refuse it. To have given it would have been merely asserting in another form of words what the jury had been already plainly told. The argument submitted by defendant’s counsel suggests that the evidence discloses such a state of facts as to preclude plaintiff’s recovery as a matter of law. We do not think so. The questions, whether the place in controversy was not reasonably safe, or, in other words, whether the street was reasonably safe, notwithstanding the existence of the place in controversy, and whether plaintiff was guilty of contributory negligence, were not matters for the determination of the court, since the evidence was of. such a character that these questions might have been determined either way. They were, therefore, properly submitted to the jury. In our opinion we are not authorized to disturb the result, and the judgment will, therefore, be affirmed. All concur.