Small v. Kansas City

Missouri Court of Appeals

Small v. Kansas City

85 S.W. 627, 110 Mo. App. 721, 1905 Mo. App. LEXIS 95

DecidedFebruary 27, 1905

StatusPublished

This text of 85 S.W. 627 (Small v. Kansas City) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Small v. Kansas City, 85 S.W. 627, 110 Mo. App. 721, 1905 Mo. App. LEXIS 95 (Mo. Ct. App. 1905).

Pincite

Opinion

ELLISON, J.

— This is an action for damages to plaintiff by reason of injuries received by his wife falling on a sidewalk alleged to have been defective. The judgment in the trial court was for the plaintiff in the sum of $2,500 and defendant has appealed.

The plaintiff’s wife brought her action for damages resulting to her by the fall and recovered a judgment for more than $4,500, which, being within the jurisdiction of the Supreme Court, defendant’s appeal was taken there and an opinion written by Judge Majrshalij was rendered December 22, .1904, not yet reported. The present case was heard on the same evidence and so far as applicable the same instructions were given which met the approval of the Supreme Court in the wife’s case.

Objection is made to plaintiff’s instruction numbered seven, it being contended that the court there assumed that plaintiff’s wife had. no knowledge of the defective walk. We do not think defendant gives the [724]*724instruction a fair interpretation, especially in the light of the other instructions with which it must be read and understood. Defendant conceives the instruction to be the more .faulty, for the reason, as is contended, plaintiff had warned his wife of the place. This is an error of defendant’s, in the sense urged. It is true the plaintiff warned his wife of the hole in the walk. That is, that there was a hole. But he did not locate it as he did not know just where it was, and for that reason fell into it himself. That he did not locate it until after his wife was hurt.

It is further urged against the judgment that plaintiff’s instruction numbered five, concerning the duty to repair the sidewalk and when it should be done should not have been given. The instruction is like that in the wife’s case and is approved by the Supreme Court.

So as to the sidewalk inspector. There was evidence tending to show that Hart was the sidewalk inspector for nearly nine months prior to the accident. It was not error to instruct ’the jury that his knowledge of the defective walk was the knowledge of the city. That question was likewise disposed of by the opinion of Judge Marshall.

Indeed, the case in the Supreme Court practically determines every point in this case in favor of the plaintiff.

After a full examination of the objections urged, we find we are without' any legal reason for disturbing the judgment and it is affirmed.

All concur.

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ELLISON, J.

— This is an action for damages to plaintiff by reason of injuries received by his wife falling on a sidewalk alleged to have been defective. The judgment in the trial court was for the plaintiff in the sum of $2,500 and defendant has appealed.

The plaintiff’s wife brought her action for damages resulting to her by the fall and recovered a judgment for more than $4,500, which, being within the jurisdiction of the Supreme Court, defendant’s appeal was taken there and an opinion written by Judge Majrshalij was rendered December 22, .1904, not yet reported. The present case was heard on the same evidence and so far as applicable the same instructions were given which met the approval of the Supreme Court in the wife’s case.

Objection is made to plaintiff’s instruction numbered seven, it being contended that the court there assumed that plaintiff’s wife had. no knowledge of the defective walk. We do not think defendant gives the [724]*724instruction a fair interpretation, especially in the light of the other instructions with which it must be read and understood. Defendant conceives the instruction to be the more .faulty, for the reason, as is contended, plaintiff had warned his wife of the place. This is an error of defendant’s, in the sense urged. It is true the plaintiff warned his wife of the hole in the walk. That is, that there was a hole. But he did not locate it as he did not know just where it was, and for that reason fell into it himself. That he did not locate it until after his wife was hurt.

It is further urged against the judgment that plaintiff’s instruction numbered five, concerning the duty to repair the sidewalk and when it should be done should not have been given. The instruction is like that in the wife’s case and is approved by the Supreme Court.

So as to the sidewalk inspector. There was evidence tending to show that Hart was the sidewalk inspector for nearly nine months prior to the accident. It was not error to instruct ’the jury that his knowledge of the defective walk was the knowledge of the city. That question was likewise disposed of by the opinion of Judge Marshall.

Indeed, the case in the Supreme Court practically determines every point in this case in favor of the plaintiff.

After a full examination of the objections urged, we find we are without' any legal reason for disturbing the judgment and it is affirmed.

All concur.

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Bluebook (online)

85 S.W. 627, 110 Mo. App. 721, 1905 Mo. App. LEXIS 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-kansas-city-moctapp-1905.