Eubank v. City of Edina

88 Mo. 650

• Court: Supreme Court of Missouri
• Decided: April 15, 1886
• Status: Published

Opinion

Black, J.

This is an action for personal damages, occasioned, it is alleged, by a defective sidewalk. The walk was three or four feet wide, and made of boards from six to eight inches in width laid lengthwise with the street. At the place where the plaintiff was injured the outer plank had been removed, leaving a hole from ten to twenty inches beneath. The plaintiff, while walking on the boards at night when it was quite dark, stepped into the hole, his foot caught under the exposed stringer, and in the fall his leg was broken.

1. The amended petition states that the defendant is a corporation, created and organized under the provisions of article 5, of chapter 89, Revised Statutes. .The sufficiency of this allegation is challenged by a mo - tion in arrest. The statute pleaded relates to cities of the fourth class. It was not necessary to plead the preliminary steps by which the city became organized under that statute. The general allegation, as made in the amended petition, is sufficient, no matter how or at what stage of the suit the question is raised. Bliss Code Plead., sec. 260. But conceding all this, it is then insisted that there was no proof to support the allegation as to plaintiff’s corporate existence. The defendant appeared and answered by way of a general denial, and further stated that the sidewalk complained of was ■ located in a part of the city of Edina where there was but little travel; that defendant’s officers had no notice of its defective character; that the same was in a reasonably safe condition; and that defendant was injured by reason of his own negligence. A private corporation, by appearing - and defending in the corporate name, admits its corporate existence. Seaton v. Railroad, 55 Mo. 416 ; Witthouse v. Railroad, 64 Mo. 523. Where a public municipal corporation appears and makes an affirmative defence, based upon the fact that it is a corporation, we see no reason why the general rule as to private corporations should not be applied. Besides this the mayor and other officers testified as to their official capacityj a pamphlet purporting to be the ordinances of the city was put in evidence. All this was done without question or objection. These ordinances show that the defendant has a mayor, board of aider-men and such other officers as cities of the fourth class have, and the proof was ample, not only that defendant was a municipal corporation, but that it was a city of the fourth class, though better evidence might have been offered if called for.

2. Yarious witnesses were asked to state, if they knew of their own knowledge, whether of not the sidewalk was in a reasonably safe condition for the traveling public, which questions were excluded. There was no error in this ruling. The questions did no more than call for the opinion of the witnesses. It was entirely proper to put in evidence the facts showing, or tending to show, the condition of the walk, but it was for the jurors, not the witnesses, to determine from these facts whether under all the circumstances the walk was in a reasonably safe condition. To allow such questions to be answered would be to take the case from the jurors and submit it to the witnesses. Gavisk v. Railroad, 49 Mo. 274.

3. It is contended the case was tried upon the theory that no notice of the defect to defendant’s officers was required to be shown ; but we do not so understand the record. A witness for defendant on cross-examination said: “I was a member of the board of aldermen, and I was on the sidewalk committee. The sidewalk was just six inches narrower where the piece of board was off. There was six or seven feet of space between where the sidewalk ended and the street crossing that had no sidewalk whatever. * * * The sidewalk was in that condition all the time before Mr. Eubank got hurt and I knew it for six or twelve months before Eu-bank got hurt.” There was other evidence tending to show that the board had been off for months.

On this evidence the court gave the following instruction :

If the jury believe from the evidence in the cause that the sidewalk in which the defect is alleged to have been and where the plaintiff is alleged to have been injured, was properly or safely constructed and laid down, and that prior and up to about the time of the alleged injury it appeared to be in a proper and safe condition, then if the evidence does not show that the defendant had actual knowledge of such defect, or the defect existed for such a length of time before the injury that the defendant, if exercising proper care and diligence, would have known of it, the jury should find a verdict for the defendant.”

This instruction fairly enough presented the question of notice of the existence of the defect, and there was certainly evidence upon which to base it. The sidewalk was located at the outskirts of the city, not traveled to any great extent, and the real question in the case was whether it was in a reasonably safe condition for persons traveling thereon. This question was fairly submitted-to the jury upon instructions favorable to defendant and of which complaint is not made.

The judgment is affirmed.

All concur.