Rusher v. City of Aurora

Biggs, J. It is admitted that Olive street is a traveled street in the city of Aurora. It runs east and west. That portion of it which extends from Jefferson to Elton avenues (a distance of one block) is graded and has a sidewalk constructed along the entire north side of the block. On the south side there are [423] houses on each corner of the block, opposite to which sidewalks are built. Between the two houses the lots are unimproved. The grade of the sidewalk along the unimproved portion of the block was raised by the city so as to conform to the grade of the street. The fill was made with cobble stones or small boulders. On the top of the stones were placed several sections of an old plank sidewalk. Whether the sidewalk was placed thereon by authority of the city or by the owner of the vacant lots, was a matter of controversy. The plaintiff while traveling over this portion of the sidewalk stepped into an opening, which caused her to fall and injure herself. She sues in this action for damages for these injuries. The allegations in substance are that the defendant erected the plank sidewalk or permitted it to be erected; that the city authorities knowingly permitted it to become and remain out of repair, and that the plaintiff received her injuries while in the exercise of due care. The answer contains a general denial and also a plea of contributory negligence. The jury awarded the plaintiff $800 as damages, and the defendant has appealed. sufficiency of petition. The first assignment of error is that the petition fails to state a cause of action, in that it fails to aver that the defendant had knowledge of the particular defect or opening which caused ^ j. ,/ the injury. There is no merit in this. It is not the law that the defendant must have had actual notice of the particular opening into which the plaintiff stepped. It is sufficient to aver and prove the defective condition of the sidewalk at or near the place of the injury; that the city authorities knew of its con-' dition, or that it had existed for such a length of time as to raise a presumption of knowledge on their part, and that the existence of the particular defect was the result of the failure of defendant to repair the walk. [424] Walker v. Point Pleasant, 49 Mo. App. 244; Marler v. Springfield, 65 Mo. App. 301. In the Marler case the defect complained of was in a measure a hidden one. The accident was caused by the breaking of a rotten plank in the sidewalk. There was proof that the general condition of the walk was bad, and that the city authorities had notice of this. We held that this evidence was sufficient for the reason that the inference was a fair one that if the officers of the defendant had repaired or inspected the sidewalk as it was their duty to do, the defective condition of the particular plank would have been discovered. oi testimony trial practice. Against the objection of the defendant the court permitted the plaintiff to prove that a few hours after the plaintiff received the injuries the defendant had the old sidewalk removed. This evidence was admissible for the purpose of showing that the defect in the sidewalk was one the defendant was bound to repair. Walker v. Point Pleasant, supra; Brennan v. St. Louis, 92 Mo. 482; Mitchell v. Plattsburg, 33 Mo. App. 555. ^testinionyLoUof tion: trial pracThe mayor of the city testified that the plaintiff admitted that she knew the sidewalk was defective, and that she was negligent in attempting to pass over it. The witness admitted on cross-examination that at the time these admissions were made he was attempting to compromise plaintiff’s claim. Objection was made to this line of examination. The court overruled the objection, but at the conclusion of the testimony of the witness the court stated in-the presence'and hearing of the jury that all evidence of the fact that a compromise was considered or attempted, would be excluded, and in its final instructions the jury was so directed. We think that the cross-examination was proper in the first instance with the view of showing that the admis [425] sions were expressly made without prejudice or under the faith of a pending treaty, and if so proof of them was inadmissible. 1 Greenleaf on Ev., sec. 192. As the examination failed to disclose this, the court pursued the only course open to it, — by directing the jury to disregard the fact that a compromise had been offered. Other objections are made to the admission of evidence, which we do not deem it necessary to discuss, as the result would not be different. NdenSce.T: evi‘ At the close of the plaintiff's evidence and also at the close of all the evidence, the defendant asked the court to direct a nonsuit. The main argument in support of this assignment is, that the evidence conclusively shows that the owner of the vacant lots placed the old sidewalk on the unused portion of the street, in order to get it off his lots, and with no intention that it should be used for the public to travel over, and hence the defendant could not be held liable for injuries received by reason of such use; in other words, that the walk was a mere obstruction in the street, and that consequently the defendant could not be held, unless the plaintiff was unavoidably forced upon or against the walk without her own volition. The trouble with this argument is, that the premise is wrong. All of the facts and circumstances tend to show that the sections of the old sidewalk were put down to serve the purpose of a sidewalk, and that they were so used to some extent. It is true that the defendant did not authorize this to be done, but there was abundant evidence that for a long time prior to the accident the officers of the defendant had notice that the walk was there, that it was being used by persons traveling along the street, and that it was in a defective condition, nevertheless it was not removed or repaired. [426] Pknowicdfe ofay’ gerfce.in: nesU' [425] Another argument in support of the instruction for [426] nonsuit is that the evidence conclusively shows that the plaintiff knew of the defective condition of the walk, and as there was a good sidewalk on the opposite side of the street, the plaintiff must be held to have assumed the risk of going over the dangerous route. In this state the general rule is, that previous knowledge of a defect in a public highway or street is not conclusive evidence of negligence by a traveler who may be injured on account of such defect. It is only a circumstance to be submitted to the jury in determining the question of his contributory negligence. Smith v. St. Joseph, 45 Mo. 449. The present case does not fall within the exceptions to the rule. Cohn v. Kansas City, 108 Mo. 387; Ray v. Poplar Bluff, No. 6450, decided by us at this term. The court gave all instructions asked. Various objections are now urged against those given at the instance' of the plaintiff. The instructions are lengthy and need not be set out in this opinion. We have considered them carefully, and have concluded that they very fairly present the law of the case. The judgment of the circuit court will be affirmed. All concur.