May 5, 1952.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT, EMORY WRIGHT, J.
David M. Proctor, John J. Cosgrove, Henry Arthur, T. James Conway, Kansas City, for appellant.
Alpha N. Brown, Kansas City, for respondent.
This is a suit for personal injuries received by plaintiff when she fell on a defective sidewalk. Trial resulted in a judgment for plaintiff for $1,750, and defendant appealed.
The petition is in usual form and the answer is a general denial coupled with a plea of contributory negligence. Defendant's assignments of error are directed against plaintiff's instruction 4. For this reason, we need not detail the evidence at length.
Plaintiff was walking westwardly at night on a sidewalk along 49th Street and her heel slipped off an elevation in the walk, causing her to fall. The elevation or step-off was caused by one block or section of the sidewalk being lower than the other. Her evidence was to the effect that the elevation or step-off was about 3 inches and extended the full width of the sidewalk and had been in that condition for a number of years. She stated that she was walking along the south edge of the sidewalk.
Defendant's evidence was to the effect that the elevation on the north side of the walk would not exceed 1 1/2 inches and at the south edge (where plaintiff was walking) the elevation was about one-half inch.
No claim is made that the evidence was insufficient to make a submissible case.
The material part of Instruction 4 reads:
"The court instructs the jury that, if you find and believe from the evidence, * * * the sidewalk on 49th Street described in evidence * * * was a public street and sidewalk * * and that at the place described in evidence there was an uneven, raised place, step or difference in level on said sidewalk, as described in evidence, * * * then the court instructs you that it was the duty of the defendant to use ordinary care to keep said sidewalk at said point in a condition reasonably safe for the use of the public * * * and, if you further find and believe from the evidence that said sidewalk was * * *, at the time described in evidence, not in a reasonably safe condition and that a sufficient time had elapsed between the time the same became so unsafe, in case you find it was not reasonably safe, and the time of the injury, * * * for the City by the exercise of reasonable diligence, * * * to have discovered and repaired the same prior to the time of the injury, * * * then the City was negligent in not discovering and repairing the same; and, if you further find and believe from the evidence that the plaintiff was traveling said sidewalk and in the exercise of ordinary care, under the circumstances, and was by reason of the unsafe condition of said sidewalk, if you find it was in an unsafe condition, caused to fall upon and be thrown to said sidewalk and be injured as a result thereof, then your verdict should be in favor of the plaintiff and against the defendant."
We have italicized the language which defendant contends is erroneous. It is first argued that the instruction does not submit "the facts relied upon to prove negligence," but merely "submits whether or not there was a raised place or a difference in level `as described in evidence.'" That language is not submitting the issue of negligence. It merely requires the jury to find there was an uneven or raised place in the sidewalk. It then defines the city's duty to use ordinary care to keep the sidewalk in a reasonably safe condition for pedestrians and requires the jury to find that the "said sidewalk was * * * not in a reasonably safe condition * * *." That is the negligence submitted.
Defendant's instruction B defines its duty with respect to streets and sidewalks thus: "* * * to keep them in a reasonably safe condition for those using them * * *." Thus both parties have adopted the same standard of care required of the city, and proceeded on the theory that failure to meet that standard would be negligence.
However, defendant argues that the instruction, in referring to the uneven condition of the sidewalk as "described in evidence," broadens the condition to include a trivial elevation for which the city would not be liable. This contention is based on the fact that plaintiff's evidence was that the step-off was approximately 3 inches; while defendant's evidence was that the maximum difference in the elevation was 1 1/2 inches, and that the elevation declined to a point where it was less than one-half inch. Therefore, the city argues that, under the broad language, "as described in evidence," the jury could have believed defendant's evidence but, nevertheless, returned a verdict for plaintiff, thus authorizing recovery for a condition trivial in character and for which defendant would not be liable.
Of course a city is not required to keep its streets and sidewalks in such an absolutely safe and perfect condition as to preclude the possibility of accidents and insure the safety of travelers thereon under all circumstances, and is not liable for every defect or obstruction, however slight or trivial. In Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 564, the court defined the duty of the city as follows: "The full measure of the duty of a municipality in reference to the maintenance of public streets and sidewalks is that it exercise * * * ordinary care to keep them in a reasonably safe condition for travel thereon by those who use them in the exercise of ordinary care." (Italics ours.) As heretofore stated, plaintiff's instruction 4 and defendant's instruction B adopt this theory as the proper standard, and plaintiff's instruction requires the jury to find that the uneven place or step-off was not in a reasonably safe condition. There was evidence from which the jury could find the sidewalk was not in a reasonably safe condition, and we do not believe plaintiff was required to negative in her main instruction evidence offered by the defendant. If defendant wanted specific instructions on its theory that the elevation was trivial, it should have sought them. Turner v. Southwest Missouri Railroad Co., et al., 138 Mo. App. 143, 120 S.W. 128; Wahl v. St. Louis Transit Co., 203 Mo. 261, 101 S.W. 1; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648, 651; Martin v. Graham Ship-By-Truck Co., Mo.App., 176 S.W.2d 842, 847. The situation is not one involving the rule that failure to predicate, in a plaintiff's main instruction, a fact or facts essential to recovery, cannot be cured by an instruction given on behalf of the defendant. Goslin v. Kurn, 351, Mo. 395, 173 S.W.2d 79, 84; Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538, 547.
In Elliott v. Kansas City, 198 Mo. 593, 615, 96 S.W. 1023, 1029, 6 L.R.A., N.S., 1082, the court held that an instruction was proper which required the jury to find "there was a hole in the sidewalk on the east side of said street, * * * which made said sidewalk not in a reasonably safe condition for persons traveling over it; * * *." In Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465, 467, the court said: "The city complains of plaintiff's main instruction on the ground it did not require the jury to find a dangerous condition had existed for a sufficient length of time to give the city notice and also because it did not tell the jury the city was entitled to a reasonable time after notice, to remedy the condition. Neither complaint is tenable. Plaintiff's instruction, in express terms, required the jury to find the ice rendered the sidewalk not reasonably safe for travel and had remained at the place of the injury long enough to give notice to the city of its existence * *." (Italics ours.) Those instructions are quite similar to plaintiff's instruction 4, which requires the jury to find that the condition of the sidewalk was not reasonably safe. Furthermore, defendant's instruction submitting contributory negligence stated that if plaintiff "could have known of the condition complained of in the sidewalk described in evidence in time to have passed over or around the same in safety * * *." Thus defendant's instruction uses the same phrase to describe the condition in the sidewalk as is used in plaintiff's instruction 4. In Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30, 32, the court said: "The rule is widely recognized that an appellant will not be heard to complain of an error or omission in respondent's instruction which is common to his own instruction or when his own exhibits the same fault. * * * Where the instructions of both parties have submitted certain issues in general rather than specific terms, complaint on this score by one of the parties will not be permitted." See, also, Jenson v. Kansas City, 361 Mo. 967, 238 S.W.2d 305, 307; Morris v. Union Depot Bridge Terminal R. Co., 320 Mo. 371, 8 S.W.2d 11. In this last case the court said, 8 S.W.2d 14: "Defendant used the exact expression in its given instruction E * *; therefore it is in no position to complain of the error, if any."
We think defendant's first criticism of the instruction is without merit.
However, defendant says that even though the first part of instruction 4 properly submits the question whether the sidewalk was "not in a reasonably safe condition," nevertheless the instruction is erroneous because the last clause predicates defendant's liability merely on the ground that the sidewalk was in an "unsafe condition." This clause reads: "* * * and, if you further find from the evidence that the plaintiff was traveling said sidewalk and in the exercise of ordinary care, * * * and was by reason of the unsafe condition of said sidewalk, if you find it was in an unsafe condition, caused to fall * * *."
It is defendant's contention that this clause required the jury to find only that the sidewalk was in an "unsafe condition," and is inconsistent with the first part of the instruction which required the jury to find that the sidewalk was "not in a reasonably safe condition."
In support of this contention defendant cites Fullerton v. Kansas City, Mo.App., 236 S.W.2d 364; Cooper v. City of Caruthersville, Mo.App., 264 S.W. 46, 49; State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 124 S.W.2d 1194; Robertson v. Wabash Ry. Co., 152 Mo. 382, 392, 53 S.W. 1082. In the Fullerton case we reviewed the other authorities cited by defendant and held that an instruction, which authorized a verdict against a city on the sole ground that a street or sidewalk was in an unsafe condition, was erroneous. The question is, does plaintiff's instruction 4, when considered as a whole, fall within that category?
The instruction specifically defines the duty of the city to use ordinary care to "keep the sidewalk in a condition reasonably safe, * * *" and requires the jury to find that at the time of the injury it was "not in a reasonably safe condition" and that a sufficient time had elapsed between the time it became "so unsafe, in case you find it was not reasonably safe, * * *"; and then requires a finding that plaintiff was caused to fall "by reason of the unsafe condition of said sidewalk, * * *."
It will be kept in mind that the clause complained of is connected with prior clauses conjunctively, not disjunctively. The article "the," as used in the instruction, indicated identity with something previously mentioned (see Webster's New International Dictionary, 2d Ed); and in the instant case it refers to the prior necessary finding that the sidewalk "was not in a reasonably safe condition." It is well settled that the meaning of an instruction must be determined from its entirety and not by considering only isolated words or phrases. West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308, 312; Kelley v. Kansas City, 153 Mo.App. 484, 491, 133 S.W. 670. We think that, when the instruction is read as a whole, it submitted the issue whether the sidewalk was in a "reasonably safe condition," which is the same issue submitted in defendant's instruction B, supra. That is the hypothesis submitted in both instructions. We do not believe the jury was, or could be, confused or misled. The instruction could have been more artfully drawn, but that does not necessarily mean that prejudicial error was committed.
The judgment is affirmed.