Clark v. City of Brookfield

ELLISON, J. — Plaintiff brought this action against the defendant city to recover damages for.personal injuries received by falling on a sidewalk charged to be out of repair through the negligence of defendant. The judgment in the trial court was for the defendant. The ground relied upon for reversal relates to error in instructions. By instruction number seven for defendant the jury were told that there was no evidence “of actual notice to the authorities of the city” of the defect in the sidewalk. There w;as no direct evidence which, in terms, showed any of defendant’s officers knew of the defect. But direct evi [19] dence is not the only way whereby proof of a fact may be had. It is proper to infer a fact from other evidence. It is legitimate to draw reasonable inferences of a fact from other facts proven. In this case there was evidence tending to show that the holé in the walk had existed for a long space of time. The accident happened in December and'one witness stated that the defect had existed during all the fall preceding. Others that it had existed for as long as a month. And one of the city aldermen was shown to reside within seventy-five feet of the place of accident. This was sufficient upon which to base an inference of actual notice. Carrington v. St. Louis, 89 Mo. 208; Boxberger v. Kansas City, 68 Mo. App. 412. The instruction ought not to have been given for another consideration, viz.: Other instructions in the case, given in behalf of each party, included in the matters submitted the question of knowledge of the defect by defendant, as distinguished from negligence in .not knowing of it. This would tend to confuse the jury on an important issue. We are furthermore of the opinion that plaintiff’s criticism of defendant’s first instruction is well founded. By that instruction the jury were told that before they could find for plaintiff it was necessary to believe four separate things: First, that the walk was Unsafe. Second, that its condition was known to defendant, or might have been known if defendant had been duly diligent. Third, that after the defendant “knew of such condition, ’ ’ it had time thereafter, before the accident, to repair it. And, fourth, that plaintiff was using due care. “And if the jury believe that any one of the elements above mentioned are wanting, then the jury must find their verdict for defendant.” Under the express terms of this instruction, if the jury did not believe that defendant knew of the defect, but yet did believe it might have known of it if it had been diligent, they must find for defendant. Connecting such unfortunate wording of that instruction with instruction number seven, above criticised, and it will be seen [20] that a jury, coaid well conclude that plaintiff had not made a case, simply for the reason that she had not shown knowledge by defendant, regardless of the further question whether defendant ought to have known. Though defendant did not know of the defect, yet if it had existed for such length of time as it might have known, had its officers exercised due and proper diligence, it would still be liable. See authorities collected in plaintiff’s brief. A point is made as to defendant calling for the opinion of witnesses in the examination, and we are cited to Eubank v. City of Edina, 88 Mo. 650, as condemning the practice in a case of this nature. Defendant contends that in point of fact the error was not committed as claimed by plaintiff. At another trial witnesses can be so clearly kept within the rule announced in that case as not to leave it a matter of dispute. The judgment is reversed and the cause remanded. All concur.