Shipley v. City of Bolivar , 1890 Mo. App. LEXIS 394 ( 1890 )

Ellison, J.

Plaintiff sued the defendant city for injuries alleged to have been received on account of a defective sidewalk. The jury returned a verdict for the plaintiff and defendant appeals. On all the material issues there was evidence sufficient to justify the court in submitting the cause to the jury, and with the jury the responsibility for the verdict must rest.

Complaint is, however, made as to the following instruction given for plaintiff, viz. :

“2. It is not necessary that plaintiff should prove that ' the city or any of its officers had notice of the ■defective condition of the sidewalk by positive testimony ; it is sufficient if the circumstances in evidence showed by the exercise of reasonable diligence and •attention to the condition of the sidewalk they would have discovered such defects ; and if any of such officers frequently passed over such sidewalk while the same was in such defective condition, or, if such sidewalk remained in such defective condition for a considerable length of time, knowledge of such defects may be inferred from these facts.”

When we consider this instruction in connection with the others, as should be done, it is not subject to criticism. It is evident from the defense made at the trial that the defendant had not much confidence in the injury which plaintiff asserted he had suffered, but, as before intimated, this was a matter for the jury, and has been determined by them. There is nothing we can discover in the cause that would justify us in reversing the judgment, and it is, therefore, affirmed.

All concur.