McIlhenny v. Kansas City

ELLISON, P. J. Plaintiff fell upon one of defendant’s sidewalks and broke his leg. He brought this action charging the city with negligence and recovered judgment. The walk was constructed of boards two inches thick and eight inches wide, laid over stringers. It was in bad condition; there being loose boards and in places boards were out altogether. But it bad been in this condition ¿ considerable time and the public including the plaintiff himself used it continuously. At the particular place where plaintiff was hurt there were two boards gone and the one next the vacancy, thus made, was loose. Plaintiff’s business was going round that part of the city in a buggy taking orders for groceries. When he got near the place of the injury the street was so muddy he tied his horse and proceeded on foot. He took the sidewalk because of the mud in the street and a ditch that had washed out between the walk and the fence. He weighed about 200 pounds and in stepping on the loose board it pushed, or as a witness said, “it scooted out” into the vacant space, and plaintiff fell and broke his leg. Nothwithstanding the bad condition of the walk the public used it. It was not in such condition as to make it apparent it could not be used with safety, by reasonable care, and the instructions required the jury to find that plaintiff was using such care. It was a [220] case for the jury. [Graney v. St. Louis, 141 Mo. 180; Chilton v. St. Joseph, 143 Mo. 192; Devlin v. St. Louis, 252 Mo. 203; Howards v. New Madrid, 148 Mo. App. 57; Lueking v. Sedalia, 181 Mo. App. 203.] The judgment is affirmed. All concur.