Willis v. City of St. Joseph

ELLISON, P. J. Plaintiff’s action is for personal injury received on one of defendant’s sidewalks, which he alleges was allowed to become dangerously out of repair. He obtained judgment in the circuit court. > The evidence tended to show that plaintiff stepped from the doorway of a shoe shop onto the sidewalk which at that place, about midway under the door, was .in this condition: The walk was of granitoid laid in blocks, and one of these blocks had settled or sunk from two and one-half to three inches. Plaintiff stepped on the edge of the higher block when his foot turned and he fell, breaking bones in his ankle. This condition had existed for a sufficient length of time to [431] charge the city with notice and there was evidence tending to show that the city policeman on their beats had observed it. We cannot say, as a matter of law, that this was not negligence in the city; nor can we say, as a matter of law, that plaintiff was guilty of negligence in not seeing and avoiding the defect. Both were questions for the jury. It is suggested that knowledge of the policemen would not affect the city. The contrary has been decided. [Carrington v. St. Louis, 89 Mo. 208.] Objection to instruction number -2, for plaintiff, seems not well taken. It asserted the proposition that a city was required to use greater diligence in looking after the safety of its streets which were much traveled than those where the travel was light. The instruction is supported by McKissock v. St. Louis, 154 Mo. 588, 595; Young v. Webb City, 150 Mo. 333. The statute (Sec. 8863, R. S. 1909) requires notice to the city giving date and place of the injury received. The notice in this case was that the injury was received on the 10th day of October, 1913, and defendant contends the evidence shows it to have been received on the 11th of that month, and therefore, under the authority of Anthony v. City of St. Joseph, 152 Mo. App. 180, there was a fatal variance requiring a judgment for the city. There was a preponderance of evidence in favor of defendant’s insistence that the injury happened on the 11th; but there was some substantial evidence that it was on the 10th and we must accept the verdict of the jury and the trial court’s approval as final. There is no error justifying a reversal and the judgment is affirmed. All concur.