Smith v. City of Brunswick , 61 Mo. App. 578 ( 1895 )

Gill, J.

—The plaintiff sued the defendant and recovered a judgment for $1,000 for personal injuries-alleged to have been caused by stepping into a hole-in a defective sidewalk or street crossing. The defendant has appealed; the sole complaint relates to the character of the court’s instructions.

"Without quoting at length the instructions given,, it is sufficient to say that the court, in substance, told the jury that it was the duty of the defendant city to keep its streets and sidewalks in a “safe condition for' travel by night as well as by day,” etc., and if it failed so to do and plaintiff was, without her fault, thereby injured, etc., then she ought to recover.

Defendant’s counsel requested an instruction to-the effect that the duty imposed on the city was only to keep' said streets and sidewalks in a reasonably safe condition, etc. The court modified said instruction by striking out the word reasonably and told the jury, as above stated, that it was the duty of the defendant to-keep and maintain its streets and sidewalks in a safe-condition.

The trial court committed error. It was not the. duty of the defendant city to keep its streets and sidewalks in an absolutely safe condition. It was only bound to the exercise of reasonable' skill and diligence in making the streets and sidewalks safe for travel in the-ordinary way. “It is sufficient,” says Judge Dillon, “if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary mod$s.” 2 Dillon on Municipal Corporations [4 Ed.], secs. 1019, 1015. The city -is not an insurer, nor bound at all events to make and keep- hs streets in perfect condition. The authorities all agree that the municipality is exempt from liability if its thoroughfares are kept in a reasonably safe condition. Reasonably, according to Webster, is defined: “In a reasonable manner; inconsistency with reason; in a moderate degree; not fully; moderately; tolerably.”

Clearly, the defendant was entitled to the instruction as asked. Nor was the error cured by any other declaration from the court. The court’s instructions were entirely harmonious and seemed to rest on the erroneous assumption that the -^defendant city was bound, not reasonably, or in a moderate degree, but absolutely, to keep its streets and sidewalks in a perfect state of repair.

The judgment must be reversed and cause remanded.

All concur.