Opinion
No. 43277.
April 13, 1953. Motion for Rehearing or to Transfer to Court en Banc Denied May 11, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, Henry Arthur, Assistant City Counselor, Kansas City, for appellant.
David R. Hardy and James H. Ottman, Kansas City, and Sebree, Shook, Hardy Ottman, Kansas City, of counsel, for respondent.
In this action against Kansas City for damages for personal injuries Mrs. Nellie Gatewood was awarded a judgment of $25,000. On September 2, 1948, Mrs. Gatewood, then seventy-one years of age, was a passenger on a bus. As she alighted from the bus at 27th and Holmes Streets she stepped upon a broken curbing, turned her ankle, and fell. The fall resulted in serious personal injuries. The curbing had been broken for a period of nine months to two years. In the plaintiff's petition and instructions the broken curbing was described as being at the bus stop "for a distance of approximately two to three feet." It was a "crumbled, worn and broken place with a sharp edge and abrupt drop of approximately four inches."
Instruction number one hypothesized the city's liability and the plaintiff's right to recover. The instruction began by stating that it was the city's duty to maintain its streets and curbing "in a reasonably safe condition for persons traveling thereover while exercising ordinary care for their own safety." The instruction then hypothesized the facts, which the jury was to find, concerning the curbing, that the city knew of the broken curbing and could have repaired it, but negligently failed to do so, that the plaintiff did not know of the condition and, while exercising due care for her own safety, fell and was injured as the direct result of the city's negligence. There was also an instruction that Mrs. Gatewood had a right to assume that the curbing was reasonably safe for travel. That part of the instruction hypothesizing the facts is as follows:
"* * * that on September 2, 1948, there was in the east curbing of Holmes Street at or near the usual stopping place for northbound Public Service Company buses at 27th and Holmes Streets, if any, a crumbled, worn and broken place with a sharp edge and abrupt drop of approximately 4 inches at the south end thereof, if so, and if you further find that the defendant by the exercise of ordinary care should have known of the existence of said broken and crumbled space, if any, in time by the exercise of ordinary care to have repaired said broken and crumbled space before the time of plaintiff's injury, if so, but that the defendant negligently (if you so find) permitted said broken and crumbled space to be and remain in the condition aforesaid at said time and place, * * *."
Upon this appeal the appellant city insists that this instruction is prejudicially erroneous in that after describing and submitting the facts concerning the curbing the instruction omits and fails to require a finding that the hypothesized condition of the curbing was "dangerous or not reasonably safe," and, in addition, assumes the fact to be that it was dangerous and not safe. The respondent admits that the instruction does not contain this requirement but urges that the instruction correctly hypothesizes the city's duty to maintain its streets in a reasonably safe condition and is not prejudicially erroneous even though it be said that the instruction assumes that the curbing was not in a reasonably safe condition. It is said that there was no real dispute as to the fact that the curbing was defective and unsafe, the case was tried upon the theory that there was no contention to the contrary, that the city's instructions made the same assumption, and that, all the instructions considered, the issues were fairly submitted to the jury and instruction one was not and could not be prejudicially erroneous. In addition it is urged that the phrase "negligence, if any" at the close of the instruction ("if you find that her fall and injury, if any, were the direct result of the negligence, if any, of the defendant") contemplated the negligent violation of the duty to maintain the curbing in a reasonably safe condition by permitting the defective and described condition to come into being and to remain in existence.
The city of necessity admitted the fact that the curbing was in the condition described by the witnesses and shown by the photographs, but it did not admit that the fact of the broken and crumbled curbing for a distance of two and a half to three feet with a depth of four inches rendered or made the curbing dangerous and unsafe for use. On the contrary the city has maintained throughout, despite the crushed and broken curbing, that the way was not so dangerous and unsafe for use as to constitute negligence. The city sought to suggest the inference that Mrs. Gatewood slipped and fell on the steps of the bus, that she saw or had she looked where she was walking, she would not have fallen on the broken curbing and the city offered instructions on these subjects. Although not required to be found in instruction one, the plaintiff, in her petition, stated that "All of said defects and defective conditions were dangerous to persons lawfully using said street, curbing and area and particularly to persons entering or alighting from Northbound buses."
As urged, the instruction correctly stated the city's abstract duty to maintain its curbing in a reasonably safe condition, McCormick v. Kansas City, Mo. Sup., 250 S.W.2d 524, but the basis of the city's liability, its negligence, consists in the breach of that duty to maintain its public ways in a reasonably safe condition. 19 McQuillin, Municipal Corporations, Secs. 54.09, 54.14. The breach of duty and hence negligence consists not alone in the defective street or curbing, but in the permitting and maintenance of a defective public way which is not reasonably safe but dangerous by reason of the defect. The defect complained of must be one calculated to cause injury and for that reason dangerous and unsafe for normal use. Reno v. City of St. Joseph, 169 Mo. 642, 70 S.W. 123; 63 C.J.S., Municipal Corporations, § 807(b) (2), page 133. The determinative factor the jury is to find, in addition to the physical facts complained of, for example the broken curbing, is that those facts constituted an unsafe, insecure and dangerous condition; that the described condition was not reasonably safe. Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180. The city is not liable for trivial defects or, more accurately, for defects which do not render the public way unsafe and dangerous and the essential question in each case is whether the particular defect complained of makes the way dangerous and unsafe. Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. In connection with the city's duty to maintain its streets, "reasonably safe" does not mean that the streets "must be safe" but that they can be used by a person in the exercise of ordinary care and "whilst they are not absolutely safe, yet the pedestrian can use them with safety to himself, if he uses ordinary and usual care for his own safety." Ryan v. Kansas City, 232 Mo. 471, 483, 134 S.W. 566, 569, 985. It is therefore essential to the plaintiff's right of recovery and to the city's liability that the jury find the existence of the specific facts complained of, Taylor v. Kansas City, supra, and, in addition, it is necessary that the jury find that those facts rendered the condition complained of dangerous and not reasonably safe for use; thus the necessary negligence on the part of the municipality is found. State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 124 S.W.2d 1194; Bornhoft v. City of Jefferson, Mo.App., 128 S.W.2d 1080; Fullerton v. Kansas City, Mo.App., 236 S.W.2d 364.
The fact that for more than fifty years instructions in suits against municipalities for negligence in connection with public ways have hypothesized the facts complained of and have required the jury to find that the facts rendered the way "dangerous and defective and not reasonably safe", Pohl v. Kansas City, Mo.Sup., 238 S.W.2d 405, 406, does not necessarily demonstrate that the omission of the requirement is prejudicially erroneous, but the fact that they have all required the finding in this or similar language is certainly of some force. Except for the instruction involved upon this appeal and the instruction in State ex rel. City of Jefferson v. Shain, supra, all the instructions, in some language, have required the jury to find that the condition complained of rendered the place dangerous and unsafe for use. Taylor v. City of Springfield, 61 Mo.App. 263; Reno v. City of St. Joseph, supra; Biermann v. City of St. Louis, 120 Mo. 457, 25 S.W. 369; Hall v. City of St. Joseph, 163 Mo.App. 214, 146 S.W. 458; Kempa v. City of St. Joseph, 178 Mo.App. 292, 165 S.W. 1176; Merritt v. Kansas City, Mo. App., 46 S.W.2d 275; Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465; Obert v. City of St. Louis, Mo.App., 148 S.W.2d 126; McGarvey v. City of St. Louis, 358 Mo. 940, 218 S.W.2d 542; Jensen v. Kansas City, 361 Mo. 967, 238 S.W.2d 305. In Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538, 547, the plaintiff stepped in a hole in the pavement as she alighted from a bus. As to the city's liability the condition complained of was hypothesized in this language, "* * * that the pavement at said point was rough, wavy, lumpy and uneven, with a hole or depression therein, and * * * that said condition covered an area approximately 4 to 6 inches deep and 10 to 12 inches square, and * * * that by reason of said condition that said street and pavement was not reasonably safe for the public traveling thereover, * * *." This is not to say that any particular language must be used, there have been variations in terminology, but invariably the finding has been required in some language. Munden v. Kansas City, 225 Mo. App. 791, 38 S.W.2d 540; Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180. As urged by the respondent, the plaintiff's omission of a finding of the requirement may not constitute prejudicial error, if, in reading all the instructions the jury is plainly required to make the finding before the plaintiff is entitled to recover. In Blackwell v. Hill, 76 Mo.App. 46, the plaintiff's instruction omitted the requirement but a defendant's instruction told the jury in no uncertain terms that before the plaintiff could recover they must find that the plaintiff's son fell over the tree and "2. They must further find that said tree in the position in which it was lying made the sidewalk not in a reasonably safe condition `for travel upon it' * * *." In this case there was an instruction, given at the request of the city, that if the plaintiff knew "that the curb was dangerous and unsafe for use by one in the exercise of ordinary care" and that she could have avoided the curbing but negligently failed to do so she could not recover. But such an instruction is not comparable to a plain direction upon the city's liability.
In Bornhoft v. City of Jefferson, Mo.App., 118 S.W.2d 93, 98, a plaintiff's verdict directing instruction hypothesized a defective sidewalk but omitted the requirement that by reason of the defect the sidewalk was not reasonably safe. The court of appeals held that the instruction was indefinite, ambiguous and misleading and stated that it should have been so drawn "as to permit a recovery only upon a defect of a dangerous character and one rendering the sidewalk not reasonably safe and have excluded a defect of a trivial or slight nature." The court of appeals held, however, that other instructions cured the defect and that the instruction was not prejudicially erroneous. Upon certiorari, State ex rel. City of Jefferson v. Shain, supra [344 Mo. 57, 124 S.W.2d 1196], this court quashed the opinion this court of appeals. In quashing the opinion this court first pointed out that the city was not liable for "merely a defective sidewalk but that the defect must be one to cause a condition not reasonably safe or one dangerous to travelers." The court pointed out, as the respondent urges here, that "the fact that the sidewalk was defective was undisputed. As to that fact the court said, "That the defect was undisputed is an additional reason which demonstrates that an instruction which requires the jury only to find that the sidewalk was defective was positive misdirection." In this connection it was specifically stated that the instruction "omitted the necessary element that the defect was not reasonably safe which would have fixed defendant's liability for negligence" and that the omission was not cured by instructions given on behalf of the defendant. On the contrary, it was held that by the omission the instruction conflicted with the other instructions. In that case it was plainly held that the instruction, in omitting a finding that the defect rendered the way dangerous and unsafe, was prejudicially erroneous. Bornhoft v. City of Jefferson, Mo.App., 128 S.W.2d 1080; Fullerton v. Kansas City, supra. The phrase "negligence, if any," in the finding "that her fall and injury, if any, were the direct result of the negligence, if any, of the defendant," may have "contemplated" the negligent violation of the duty to maintain the curbing in a reasonably safe condition, Brown v. Reorganization Inv. Co., 350 Mo. 407, 419-420, 166 S.W.2d 476, 482, but it did not and could not be said to submit and require the essential finding that the defective curbing rendered the way not reasonably safe for use and dangerous. As against all the reasons advanced upon this appeal, State ex rel. City of Jefferson v. Shain holds that this instruction was prejudicially erroneous. Accordingly the judgment is reversed and the cause remanded.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.