Oliver v. City of Denver in no case would the city be liable for injuries received, as complained of in this instance, within the sidewalk area, but without that part of it occupied by the flagging or artificial walk. The extent of the duty of the city as to this area not covered by the constructed walk, in seeing that it was kept free from obstruction to the safe and convenient travel of pedestrians, would depend in some degree upon the uses to which it was set apart, or allowed to be set apart, under the powers granted to the city under its charter, as well as upon the character of the alleged obstruction. The measure of the duty and corresponding liability might also depend upon the fact as to whether the constructed walk was of width sufficient to subserve its purpose, and whether it was at the time and place of the accident in such condition of repair as to furnish easy, safe, and ample facilities for the passage thereon and thereover of pedestrians. And it cannot be said that all of these are matters of defense only, and must be specially pleaded as such. The complaint must contain such allegations of facts as to show upon its face the legal duty of the city, and its liability. In this instance the complaint specifically alleges that the obstructions complained of restricted the use of the sidewalk at that point to the width of the stone flagging. By the construction of an artificial walk, a city invites the travel of pedestrians upon it, and upon it alone. The duty is incumbent upon it to keep this in reasonable repair, but the measure of this duty is quite different from that to keep the remainder of the sidewalk area free from obstructions, and in suitable and safe condition for travel. The city had a right to insist that the complaint advise it specifically what duty it was charged with having neglected. The evident theory of the complaint, and that upon which, under the facts as stated, the plaintiff would be entitled to recover, if at all, is that the artificial walk was of insufficient width; but this is nowhere alleged, as it should have been. A very recent opinion of the New York court of appealspublished since this opinion was written, and rendered in a case which involved a very similar state of facts and the Young v. City of Webb City identical principles upon which the case at bar turns— supports fully the views which we have expressed. Dougherty v. Trustees of Village of Horseheads, 53 N. E. 799. For these reasons, we think the demurrers were properly sustained, and there being no attempt to amend the complaint, as could have been done, judgment was properly rendered in favor of defendants. Affirmed. BISSELL, P. J., not sitting. NOTE. Duty of Lighting Streets.-Where a city is required by law to light its streets, it is liable for neglect to do so, otherwise, not. Gaskins v. Atlanta, 73 Ga. 746; Freeport v. Isbell, 83 Ill. 440; Butler '. Bangor, 67 Me. 385; Randall v. E. R. R., 106 Mass. 171; Noble v. Richmond, 31 Gratt. (Va.) 271. But the fact as to whether a street was lighted or not, may have a material bearing on the question of negligence; e. g., in cases where the street would have been perfectly safe if lighted. Miller v. St. Paul (Minn.), 36 N. W. Rep. 271. Nor is it incumbent upon a municipality to do so in the absence of a charter or statutory requirement. Canavan v. Oil City, 183 Pa. 611, 38 Atl. Rep. 1096; McHugh v. St. Paul, 67 Minn. 441, 70 N. W. 5. YOUNG V. CITY OF WEBB CITY. (Supreme Court of Missouri, June 6, 1899.) Question for Jury. Where evidence is conflicting, the weight of it is for the consideration of the jury. Demurrers to Evidence. A demurrer to evidence admits the truth of every fact proven, and which may be inferred from the testimony. Sidewalks-Duty to Keep in Repair.*. A municipal corporation is bound to use ordinary care to keep its sidewalks in a reasonably safe condition for the use of pedestrians. *See note, 1 Mun. Corp. Cas. 58. Young v. City of Webb City Same-Defects-Notice to Municipality.*-A municipal corporation is liable for personal injuries resulting from a defect in one of its sidewalks, of which it had notice, or was chargeable with notice because of the time it had existed before the accident. Same Same Same-Presumptions.--The fact that a defect has existed in a sidewalk for six weeks prior to an accident warrants the presumption that the city had notice of it in time to have repaired it before the accident. Instructions.-An instruction to the effect that, if from the evidence, the jury find for plaintiff, in estimating her damages they must take into consideration the physical injury inflicted, does not assume that such injury was inflicted. APPEAL by defendant from Vernon county circuit court. Affirmed. Frank L. For low, for appellant. L. L. Scott, for respondent. Case Stated. BURGESS, J. This is an action for damages for personal injuries alleged to have been sustained by plaintiff by a fall occasioned by the defective condition of one of defendant's sidewalks upon which she was walking at the time. The suit was instituted in the circuit court of Jasper county, but the venue was subsequently changed to the circuit court of Vernon county, where, upon a trial to the court and jury, plaintiff recovered a verdict and judgment for $5,000. After unsuccessful motion for a new trial and in arrest, defendant appeals. The plaintiff is a married woman, and was at the time of the trial, in December, 1896, 34 years of age, and the mother of six living children and one dead. At the time of the accident she lived in Vernon county, but was visiting relatives, who lived near defendant city. Prior to the accident she had always been a stout healthy woman. On the evening of November 12, 1894, she, in company with her sister, went to Webb City to do some shopping, and while they were walking west on Main street, one of the principal thoroughfares of said city, after dark, plaintiff's foot slipped *See notes, 1 Mun. Corp. Cas. 475. +See Devenish v. City of Spokane (Wash.), 2 Mun. Corp. Cas. 46. Young v. City of Webb City in a hole in the sidewalk, which was constructed of wood, causing her to fall heavily upon the walk, producing an impacted fracture of the right thigh bone.-that is, a fracture of the neck of the thigh bone,-by reason which she was confined to her bed for over six months, suffered great pain always thereafter, the leg being shortened, and the injury permanent. The evidence tended to show that the hole in the sidewalk into which plaintiff stepped had been there for about six weeks prior to the accident. At the close of plaintiff's evidence defendant interposed a demurrer to the evidence, which was denied, and it duly excepted. At the close of all the evidence, the court, at the instance of plaintiff, over the objection of defendant, instructed the jury as follows: "(1) The court instructs the jury that it is by law made the duty of defendant to keep its sidewalks upon its streets in a reasonably safe condition for the use of pedestrians using the same for travel; and if you shall believe from the evidence that the defendant city permitted its sidewalk on the street and at the place on said street mentioned in plaintiff's petition to become out of repair, and in a dangerous condition for travel, and to so remain in a dangerous condition and out of repair after it knew, or by the exercise of reasonable care and caution could have ascertained, the defective and dangerous condition of said. sidewalk, and the plaintiff, while passing along said sidewalk, at the place mentioned in plaintiff's petition, was, on account of said defective and dangerous condition of said sidewalk, without fault or negligence on her part, injured thereby, your verdict should be for the plaintiff. (2) The court instructs the jury that if, from the evidence, they find for the plaintiff, then, in estimating her damages, they will take into consideration the physical injury inflicted, whether temporary or permanent, and the bodily pain and mental. anguish endured, if any, by plaintiff; and in assessing her damages you shall assess them at such sum as you shall believe from the evidence will reasonably compensate her for said injury received, together with the suffering caused by Young v. City of Webb City reason of said injury, and in a sum not to exceed twenty thousand dollars, as asked for in plaintiff's petition." And to the decision of the court in giving said instructions, and each of them, defendant then and there at the time excepted. The following instructions were given at the request of defendant: "(3) The court instructs the jury that, before the duty is placed upon the defendant to keep the sidewalk in reasonably safe condition, it devolves upon the plaintiff to show that said sidewalk was a part of a street that had been dedicated to the public by the owner of the land over which it passes, and said dedication accepted by the city; but such acceptance need not be shown by any formal order of record, but may be shown by such other acts as may show that the defendant recognized and treated the same as one of its streets, or the plaintiff must show that said street has been used by the public for the space of ten years continuously under claim of right that it was a public highway; and, unless the plaintiff has so shown, your verdict will be for the defendant. (4) The court instructs the jury that if the defect in the sidewalk was obvious, and plaintiff, by the exercise of reasonable care, would have observed the same, and they further believe that there was sufficient width of said sidewalk for plaintiff and her sister to walk on and avoid said defect, then plaintiff cannot recover. (5) The court instructs the jury that if they believe from the evidence that the amount sued for by plaintiff is excessive and exorbitant, then they may take that fact into consideration as to the weight to be given her testimony. (6) The court instructs the jury that the ground of plaintiff's suit against this defendant is negligence, and that negligence cannot be presumed, but must be established by the plaintiff to your satisfaction by proof. Therefore, although you may find that the plaintiff was injured by falling on the defend ant's sidewalk, yet that fact alone does not entitle plaintiff to recover in this action, but she must show further to your satisfaction by the preponderance-that is, the greater weight of the evidence that she sustained the injuries com |