Wright v. City of Kansas , 1885 Mo. App. LEXIS 358 ( 1885 )

Opinion by

Ellison, J.

This is an action for personal injury, in which plaintiff obtained judgment in the circuit court for $2,000, and defendant appeals. There was no exception to the testimony nor to any instruction for plaintiff. The only exception taken at the trial being to the refusal of the first, second and third instructions offered by defendant.

On Sunday morning, August 14, 1881, Mrs. Wright, the respondent, while walking on the west side of Cherry street, between Tenth and Eleventh streets (at about the middle of the block), fell upon the sidewalk and received personal injuries from the fall. It seems that at that point the plank in the sidewalk had become loose and separated; that when Mrs. Wright and another lady were walking along said sidewalks that Sunday morning (going to a Catholic church), this other lady (a little in front and to one side of Mrs. Wright), stepped upon one end of one of these loose planks, tipping it up in front of Mrs. Wright, and Mrs. Wright then stepped in the open space left in the sidewalk by the raised plank, and falling, received physical injuries thereby.

We think the record shows plaintiff fully entitled to her judgment, both upon, the law and the facts. The alleged error in refusing the first instruction is very properly not insisted on. The court was equally justified in refusing the second instruction, as there is not a particle of evidence brought forward in the abstracts before us justifying the instruction. There is nothing tending in that direction. The third instruction was properly refused for two reasons : First. There is nothing in the record showing plaintiff was guilty of contributory negligence.. The fact, of her knowing the walk was somewhat unsafe in wet weather, would not certainly prevent her from walking over it in good weather, with the care she was required to exercise by the other instructions. But conceding the jury should have been instructed as to contributory negligence, it was sufficiently done in other instructions given by the court.

The law as to liability of cities in cases of this sort is well settled, and it is not serving any important purpose to enter into a re-argument of the question or a recitation of the authorities, so often gone over before, and which are now understood so well.

Suffice it to say, that the few exceptions which were taken to the action of the court below are not good and the judgment seeming manifestly to be for the right party, is affirmed.

All concur.