Shores v. City of St. Joseph

ELLISON, J. This action was instituted by plaintiff to recover damages for personal injury alleged to have been received through the negligence of defendant in the care of one of its streets. The judgment in the trial court was for the plaintiff. Under one of defendant’s principal streets there was a main sewer and on the surface there were street railway tracks. A heavy rainstorm had partly washed out the sewer so that the street had fallen in for considerable space, perhaps 150 or 160 feet, leaving a large opening or hole, a depth of ten or twelve feet, extending from the side, including the sidewalk, up to about the car tracks. The city ran a fence along the side of the opening until it came up to within about two feet of the tracks where it narrowed to a space four or five feet across. Here the fence spanned the opening, leaving a narrow portion outside the fence. Across this hole two boards, each one foot wide, were said by defendant to have been laid, without being nailed or secured. Thus, one following the fence would come to the boards and walk across. This condition remained for near six weeks. It was in the night when plaintiff came along. He followed the fence until he came to the place where the boards were said to have been placed and fell in, receiving the injuries of which he complains. The evidence was contradictory as to the sufficiency of lights maintained by the city; and so it was as to whether there were in fact any boards across the narrow open space into which plaintiff may have stepped. But when all is considered, it leaves no doubt of its affording ample ground to support the verdict finding negligence on the part of the city and no contributory negligence on plaintiff’s part, and we have only to consider the in [12] structions given for plaintiff, as defendant makes no complaint as to those offered by it. The criticisms of plaintiff’s instructions are altogether technical and in view of the gross negligence of the city, as shown by the extraordinarily dangerous conditions in the street, we are not inclined to give them any more favorable consideration than the law absolutely requires. Considered separately, the instructions are not to be commended as models, but when considered as a series, in connection with those for defendant, as they should be, there is no doubt whatever that no ill effect was produced with the jury. [Meadows v. Insurance Co., 129 Mo. 76, 97; Owens v. Railroad, 95 Mo. 169; State ex rel. v. Hope, 102 Mo. 410, 426.] By the instructions plaintiff voluntarily took upon himself burdens he need not have assumed. There is no proper place in this case for a question of notice to the city. It is conceded that it knew of the great width and 'depth of the hole in the street, and the only question was as to sufficient protection which it assumed. [Drake v. Kansas City, 190 Mo. 370.] In truth the only real controversy in the case was as to plaintiff’s exercise of ordinary care; that is, whether he was free from contributory negligence, and of this we think the jury was properly advised. But for that part of the case showing plaintiff’s unfortunate condition and situation in life there would have been little room left for argument against the justness of his cause. The judgment was for the right party, and is affirmed. All concur.