Opinion
No. 41929.
March 12, 1951. Motion for Rehearing or to Transfer to Court En Banc Denied April 9, 1951.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, PAUL A. BUZARD, J.
David M. Proctor, City Counselor, John J. Congrove, Asst. City Counselor and Henry Arthur, Asst. City Counselor, all of Kansas its, for appellant.
Arthus C. Popham Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell Trusty, Kansas City, of counsel, for respondent.
This is an appeal form a judgment in favor of plaintiff (respondent) and against Kansas City (appellant) for $9500.00. Respondent sustained personal injuries when she tripped and fell over a raised place in a public sidewalk in Kansas city
The only error assigned by appellant is that Instruction No. 1, given at the request of respondent, is erroneous. The challenged instruction reads as follows:
"The Court instructs the jury that while exercising its exclusive right of dominion and control over its public streets the law made it the nondelegable duty of defendant Kansas City to exercise ordinary care to keep and maintain the public sidewalk at the time and place plaintiff allegedly feel in a reasonably safe condition for the ordinary use of the public in walking on and passing thereover, and failure, if any on the part of defendant Kansas City to so exercise such ordinary care would in law constitute negligence.
"If you believe from the evidence that on April 13, 1947 at the time and place plaintiff fell, if so, said public sidewalk on the north side of 56th Street at a point a few feet west of the Pierson driveway at 1030 West 56th street referred to in evidence, from any cause whatever had a raised place therein constituting an obstruction of approximately two inches or more in height above the general grade and remaining part of said sidewalk, if you so find, and thereby rending said sidewalk threat rough and uneven and dangerous and defective and not reasonably safe for the ordinary use of the public in walking thereover at said time and place, if you so fine, and if you find that the afore submitted dangerous and defective condition of said sidewalk threat continuously existed for many weeks before plaintiff so fell threat, if so, and long enough before her alleged fall for defendant Kansas City by the use of ordinary care to have known thereof and by the use of ordinary care to have repaired and remedied same before she fell, if so, and thereby have prevented her so falling, if so, and if you find that defendant Kansas City failed to use ordinary care in the above respects and that thereby and in maintaining said sidewalk in the afore-said condition, if so, defendant Kansas City was negligent, if you so find, and if you find that on said date plaintiff was walking in a general westerly direction on said sidewalk and was at all times using ordinary care, if you so find, and that when she reached said raised place, if any, above described and submitted, her foot struck same and she then and there stumbled upon and against said projection or raised place, if any, in and upon said sidewalk and was thereby caused to fall and was thereby injured, if you so find, as a direct result of the afore submitted negligence of defendant, if you so find, then your verdict must be for plaintiff Mary Pohl and against defendant Kansas City." (Italics ours.)
Appellant urges that the italicized portion of this instruction "enlarges the duty which defendant owed plaintiff, makes the city an insurer of the safety of its sidewalks and imposes upon it the obligation to have repaired the same to such an extent as to have prevented plaintiff from falling." It is argued that, under this instruction, respondent's right to recover is not limited to a violation of appellant's duty to exercise ordinary care to keep its public streets and sidewalks in a reasonably safe condition. Citing Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562, 564, appellant point out that it 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" so that it is not liable for every defect or obstruction however trivial and unlikely to cause injury. It contends that the instruction transcends the legal duty imposed upon it under settled principles of law expressed in the Taylor case and other Missouri decisions.
If the instruction has such meaning and effect, it is, of course, erroneous. We do not agree, however, that such a view of the instruction is correct or justified. The meaning of an instruction must be determined form its entirety and not by considering only isolated words or phrases. Mueller v. Schies, 352 Mo. 180, 176 S.W.2d 449, 453; Rishel v. Kansas City Public Service Co., Mo. Sup., 129 S.W.2d 851, 856; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, 369.
The first paragraph of the instruction deals abstractly with appellant's duty and correctly states that it is appellant's duty "to exercise ordinary care to keep and maintain the public sidewalk at the time and place plaintiff allegedly feel in a reasonably safe condition." The second paragraph required the jury to find the existence of a specific obstruction which rendered the sidewalk "dangerous and defective and no treasonably safe"; that such dangerous condition had existed for a long time prior to the accident and long enough for appellant to have know of and repaired and remedied the condition which was not reasonably safe; and "thereby have prevented her so falling." In view of the accurate exposition of appellant's duty to exercise ordinary care to keep the sidewalk in a reasonably safe condition and the required finding that the sidewalk was not reasonably safe, the additional required finding that appellant had the time and opportunity to remedy the condition could mean only that appellant had the opportunity, in the exercise of ordinary care, to have placed the sidewalk in a condition which was reasonably safe. thus, when the criticized portion of the instruction is considered in the context in which it has been used, it required the jury to find that appellant could have prevented respondent's fall by exercising ordinary care to place the sidewalk in a reasonably safe condition. We believe that a jury of ordinarily intelligent laymen, who should be credited with common sense and reasonable discernment, would so understand the instruction. Mueller v. Schien, supra; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, 545; Wilday v. Missouri-Kansas-Texas R. Co., 347 Mo. 275, 147 S.W.2d 431, 434.
Respondent argues that appellant's contentions have been fully settled by Hunt v. Kansas City, 345 MO. 108, 131 S.W.2d 514, 515, which involved an instruction substantially similar to the one in controversy in the case at bar. Appellant seeks to differentiate the Hunt case because there the injured pedestrian fell into an open coal hole which the city was under a duty to cover completely while in the instant case it was not required to repair the rise or obstruction in the sidewalk "to the same degree of perfection as it was obliged to cover a coal hole in a sidewalk." We must confess our inability to understand the distinction which appellant seeks to make. We think the rationale of Hunt v. Kansas City, supra, is fully applicable here; that it is decisive of the instant case; and that it becomes unnecessary to discuss other cases cited by appellant, which we have examine carefully, except to say that they do not involve instructions sufficiently similar to the one is issue here to have any application. In the Hunt case we said, 131 S.W.2d loc. cit. 515:
"The above citations are in point if appellant's view of the instruction is correct, but we believe appellant misreads the instruction. The instruction requires the jury to find: that the hold was left open, which constituted a condition not reasonably safe for pedestrians; that the hole was negligently left open for several weeks and for such length of time that the city by the exercise of ordinary care could have known in sufficient time so that thereafter by the exercise of ordinary care the city could have remedied such conditions (that is, the uncovered condition of the hole) or caused the hole to be covered and could thereby (that is, by remedying the uncovered condition or covering the hole) have prevented injury to plaintiff, and defendant negligently failed to do so (that is, failed to exercise ordinary care to remedy the uncovered condition, etc.)
"The words `and could thereby have prevented injury to the plaintiff' could have been omitted without injury to the instruction. In fact, the instruction would have read better without those words, but their inclusion does not authorize the jury to return a verdict against defendant if it `could have prevented the injury and negligently failed to do so' (as appellant seems to think), but authorizes such a verdict only `if defendant could have presented the injury by the exercise of ordinary care to cover the hole and negligently failed to do so.' Reading the instruction in its entirety we do not believe it misled the jury as to the measure of duty owed by the defendant. Drake v. Kansas City Pub. Service Co., 333 Mo. 520, 535, 63 S.W.2d 75; Larey v. Missouri-Kansas-Texas R. Co., 333 Mo. 449, 64 S.W.2d 681; Garard v. [Manufacturers] Coal [ coke] Co., 207 Mo. 242, 105 S.W. 767; Gibler v. Terminal Ry. [Ass'n,] 206 Mo. 208, 101 S.W. 37, 11 Ann. Cas. 1194; Jerowitz v. Kansas city 104 Mo. App. 202, 77 S.W. 1088."
Appellant's assignment of error is without merit. The judgment should be and it is hereby affirmed.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by ASCHEMEYER, C., is adopted as the opinion of the court.
All concur.