From the Circuit Court of Clay County; Civil Appeal; Judge Stephen R. Pratt.
Motion for Rehearing Overruled, Transfer Denied September 27, 1983. Application Denied November 22, 1983.
Before Wasserstrom, P.j., Kennedy, Nugent, JJ.
The opinion of the court was delivered by: Wasserstrom
Plaintiff sued to recover damages for a fall which she suffered on defendant's sidewalk. From an adverse judgment on jury verdict, defendant appeals. We hold: (1) the evidence sufficiently supported a finding of constructive notice of the sidewalk defect to defendant; (2) the verdict directing instruction pursuant to M.A.I. 22.04 was not erroneous; and (3) the trial court did not abuse its discretion in overruling defendant's objection to plaintiff's jury argument.
During the predawn hours of October 2, 1978, plaintiff was walking her dog when she stumbled over a chunk of concrete, lost her balance on the loose and crumbling sidewalk and fell. That fall resulted in a broken hip.
Photographs in evidence showed that the sidewalk at the place of the accident was badly deteriorated with the adjacent curbing broken. Witnesses testified on behalf of plaintiff that the sidewalk condition described existed for some period of time, at least a year or two. A number of witnesses stated that they had seen chunks of concrete strewn on the walk, and that those loose chunks had been removed from time to time. Mr. Yeager and Mrs. Lansdon testified for plaintiff that the chunks of concrete which they had seen were pieces of the curbing. Plaintiff testified that the chunk of concrete over which she stumbled looked to her like a piece of the curbing, and Mrs. Helton who came to the scene of the accident shortly after it occurred also stated that the chunk of concrete on the sidewalk looked like part of the curbing. Plaintiff also testified that previous to the accident in which she broke her hip she had notified the "council people" concerning the bad condition of the sidewalk.
Sufficiency of Notice to Defendant
Defendant argues that the specific cause of plaintiff's fall was the chunk of concrete. It further says that there is no evidence that the defendant city had any actual notice of the presence of that chunk of concrete on the sidewalk; nor was there any showing by plaintiff concerning how long the chunk of concrete was there nor any other circumstances from which constructive notice on the part of the city could be inferred.
The error in that argument lies in the assumption that plaintiff was required to show notice to the city of this very chunk of concrete over which she stumbled. Plaintiff was not so required. It was sufficient that she showed a general defective condition of the sidewalk of a continuous nature. Catalano v. Kansas City, 475 S.W.2d 426 (Mo. App. 1971); Sutter v. Kansas City, 138 Mo. App.105, 119 S.W. 1084 (1909); Vance v. Kansas City, 123 Mo. App.644, 100 S.W. 1101 (1907); Huff v. City of Marshall, 97 Mo. App.542, 71 S.W. 477 (1903); Fadem v. City of St. Louis, 99 S.W.2d 511 (Mo. App. 1936). There was ample evidence that defendant city had notice of this general bad condition. Plaintiff testified that she had discussed this situation with representatives of the City Council. Aside from that, the evidence sufficiently showed that the condition existed for a sufficient length of time that defendant city should have known of it. The photographic and oral testimony showed physical deterioration that was gradual and the joint product of time and neglect. See Word v. City of St. Louis, 617 S.W.2d 479 (Mo. App. 1981).
Defendant objects to Instruction No. 4, the verdict director, of which paragraph First submitted to the jury the question of whether "there was a defect in the sidewalk." Defendant says that plaintiff relied not on one single defect, but rather upon three, consisting of: (1) a broken sidewalk, (2) a chunk of concrete resting thereon, and (3) a broken curbing. Defendant proceeds that the term "defect" should have been supplemented or changed to advise the jury of the specific condition upon which liability would be based.
The fallacy here is the same as that which underlies defendant's first point already considered under point I of this opinion. The "defect" here is the entire eroded, dilapidated condition of the sidewalk which included both the chunk of concrete strewn thereon and also the broken gravely surface of the walk itself. It was enough for plaintiff to submit this general ...