Kelley v. City of St. Joseph , 170 Mo. App. 358 ( 1913 )

ELLISON, J. —

On the 13th of January, 1911, tlio streets of the city of St. Joseph, were covered with snow and ice and continued to be until the 21st of that month when plaintiff fell on one of the sidewalks and was injured. She brought this action against the city for damages, on the ground that the city was negligent in allowing the snow to get into ridges and by thawing and freezing be transformed into ice of uneven surface and dangerous to pedestrians. She recovered judgment in the trial court.

Regarding the testimony in plaintiff’s behalf as: the facts of the case, as we must on the question of the propriety of a peremptory instruction to find for the defendant, we think a ease was made for the jury and hence sustain the trial court in overruling the demurrer to the evidence.

But plaintiff’s first instruction, is so clearly erroneous as to compel a reversal of the judgment. Defendant’s principal defense was that a clear space had been cleaned from the granitoid sidewalk, ample for pedestrians, and. that only the sides of the walk had Become ridged up and uneven and that any danger in the walk came from snow on the terrace and nearby higher ground thawing shortly before the accident and the water running lightly over the clear part of the walk and then freezing into a thin coat of slick ice, a condition impossible for the city to avoid. Plaintiff stated that she came along the “path” on the "walk and seeing this slick ice she thought it safer to go to the edge on the ridges and thereby she fell. So, if she was diverted from the safe way by a condition the city could not reasonably avoid, it would not be liable for the resulting injury. Yet plaintiff’s instruction purporting to cover, in detail, the entire case, omitted any reference to the defense and directed, a verdict. This was error. [Goetz v. Railway Co., 50 Mo. 472, 474; Fitzgerald v. Hayward, 50 Mo. 516, 523; Bluedorn v. Railway Co., 108 Mo. 439, 449; Zeis v. Brewing Co., 205 Mo. 638, 648-650.] The propriety of such an instruction has been before the Supreme Court quite recently and condemned. [Enloe v. Car & Foundry Co., 240 Mo. 443; State v. Helton, 234 Mo. 559, 564; State v. Stubblefield, 239 Mo. 526; State v. Lentz, 184 Mo. 223.]

Complaint is made of what defendant terms a fatal defect in the written notice of the injury which plaintiff gave to the city as required by section 8863, Revised Statutes, 1909. It was dated at St. Joseph and was addressed “To the Mayor of the City of St. Joseph, Mo.” It.gave notice of the time and place, the side of the street on which it occurred, the exact distance from a cross street, the reason for the fall, the character of the injury, and that she would claim damages. Defendant does not pretend it was not a perfect notice except that it did not say that the place thus described was “St. Joseph, Buchanan county, Missouri.” We think that omission did not invalidate the notice.

The judgment is reversed and cause remanded.

All concur.