ON REHEARING. We are content with what was said by ARNOLD, J., on the original submission of this case so far as is shown above, but it is necessary to pass upon some other matters raised in the briefs and to these additional matters we now direct our attention.
It is insisted by the city that plaintiff's instructions Nos. 1 and 2 are erroneous in that they fail to have the jury find that the notice properly described the circumstances of the injury. These instructions do have the jury find that "plaintiff caused a notice in writing of his alleged injuries . . . to be served on the mayor, . . . within sixty days after the alleged injury; that said notice described the place where, the time when and the extent and character of the injuries received by him, and that he would claim damages from the defendant city of St. Joseph on account of said injuries so received." It will be noted that the instructions do not have the jury find the matter that the defendant city now insists it should have been required to find. The only circumstance in connection with the injury over which there was a dispute in the evidence, unless it be as to the place where plaintiff fell and on the original submission of the case we find that there was no substantial conflict on this point, was whether the snow and ice causing the defect in the sidewalk over which plaintiff fell were rough and had uneven ridges forming a dangerous obstruction, or whether the ice was merely a thin sheet of ice such as would be found all over the city after a general snow or freeze. There is some dispute in the briefs as to whether it was necessary for the jury to find whether the notice gave the circumstances of the injury or whether the sufficiency of the notice under the facts of this case was for the court and not for the jury. However, we are not required to pass upon this matter for the reason that the jury were required to find in the instruction that the "ice was negligently permitted to be and remain on said sidewalk and to freeze into raised and *Page 210 uneven ridges forming a dangerous obstruction to persons attempting to walk along said sidewalk." The notice stated that the ice was rough and had "unlevel surfaces in bumps and ridges." The jury were therefore required to solve the only issue in the case as to the circumstances surrounding the injury in favor of plaintiff and, consequently, in effect found that the notice properly gave the "circumstances" of the injury.
It is insisted by the city that the petition does not state sufficient facts to constitute a cause of action against the city; that it does not allege that the notice was served upon the mayor and that the statute required such service as a condition precedent to the maintenance of the suit. It will be borne in mind that the statute under discussion does not create the cause of action but that the cause of action is given by the common law, the statute merely declaring that the action may not bemaintained until the notice is given. Where the statute creates a cause of action the condition then constitutes an element of the cause and must be pleaded but where the cause of action is created by the common law the condition is not a part of plaintiff's cause of action but is a matter of evidence. We think then that neither the notice nor the conditions need be pleaded in the petition. [Morrill v. Kansas City, 179 S.W. 759; Jacobs v. City of St. Joseph, 127 Mo. App. 669.] Reid v. City, 192 S.W. 1047, is not in conflict with this holding. In that case the allegations of the petition showed that the statutory notice had not been given and for that reason the court held that the petition on its face showed that plaintiff had no cause of action against the city and consequently decided that the petition was bad and subject to a demurrer.
Complaint is made of plaintiff's instruction No. 4, which is as follows —
"The court instructs you that the burden of proof rests upon the defendants to prove that the plaintiff was guilty of any contributory negligence in this case."
It is insisted that by this instruction plaintiff had excluded from the jury the right of defendants to have *Page 211 it find from the evidence offered by plaintiff that he was guilty of contributory negligence. The wording of this instruction has been approved in substantially the same form and we declare it not erroneous. [Maguire v. St. Louis Transit Co.,103 Mo. App. 459, 472; Murray v. Railroad, 101 Mo. 236, 240.]
The court did not err in submitting the two theories embodied in plaintiff's instructions Nos. 1 and 2. In plaintiff's first instruction the jury were required to find that water from the roof of defendant Brittain Investment Company's "building because of insufficient or defective guttering, drains or downspouts was negligently permitted to flow along and across the sidewalk . . . and permitted to freeze into ice on said sidewalk; that said ice was negligently permitted by defendants to remain on the sidewalk and to freeze into rough and uneven ridges forming a dangerous obstruction" to pedestrians. Instruction No. 2 is in substantially the same language except that it instructs the jury that if the defendant Brittain Investment Company did not negligently permit said water to flow upon said sidewalk but that the other facts existed, their verdict should be against the city alone.
There is no question but that these instructions were proper. So far as plaintiff's cause of action against the city is concerned it was immaterial as to where the water came from that flowed on the sidewalk. For this reason we held the notice good although it did not state where the water causing the obstruction came from. The gist of plaintiff's cause of action against the city was that it permitted a dangerous obstruction to negligently remain upon the sidewalk after it knew, or by the exercise of ordinary care could have known, of its presence. This was submitted in plaintiff's instruction No. 2. Both the city and property owner were liable if through the fault or carelessness of the property owner the obstruction came into existence upon the sidewalk and the city after it knew, or by the exercise of ordinary care could have known, of the obstruction, carelessly failed to remove *Page 212 the same. This theory was submitted in plaintiff's instruction No. 1. The petition and the notice were sufficient to base a recovery against the city under either instruction.
It is contended by the defendant, Brittain Investment Company, that the petition alleges merely that it was the owner of the premises; that the evidence shows that at the time of plaintiff's injury a tenant was in possession of the premises; that there is no allegation of any defective construction of the downspout or guttering, and that plaintiff's instruction No. 1 allows recovery against said defendant if the guttering or downspout was insufficient or defective, and that plaintiff was permitted to recover against the property owner on the theory that it was liable merely because it owned the building and that said defendant was not so liable, for the reason that a tenant was in possession and prima facie the tenant is responsible for lack of repairs.
The petition does not allege that the Brittain Investment Company was in possession of the premises but merely states that it was the owner of the property. However, the petition alleges negligence on the part of the property owner and it would seem that the inference from the language of the petition is that the property owner negligently caused the injury by maintaining a defective and insufficient downspout or guttering upon the building, so it seems that there is something more than a mere allegation of ownership of the building on the part of the property owner contained in the petition. The instruction allows recovery even though there was no defective construction but permits recovery by merely showing that the guttering or downspout was insufficient or defective at the time of the injury. The evidence is not clear that the defective guttering and downspout existed while the premises were in possession of a former tenant and continued in the same condition down to the time of the injury, therefore we can not say that the defect in the guttering and downspouts existed at the time the property owner leased or rented the premises to the *Page 213 tenant who was in possession at the time of the injury and the defendant property owner is therefore responsible for the condition and liable for the injury caused as a result thereof. [Stoetzele v. Swearingen, 90 Mo. App. 588; Mancuso v. Kansas City, 74 Mo. App. 138, 143.] Plaintiff's instruction is erroneous as to the Brittain Investment Company.
The judgment is affirmed as to defendant city but is reversed and the cause remanded as to defendant Brittain Investment Company. [Wiggin v. St. Louis, 135 Mo. 558, 570; Hutchinson v. Mullins, 189 Mo. App. 438; Kansas City v. Mullins,200 Mo. App. 639; Sec. 7954, R.S. 1919.]
All concur. Trimble, P.J., in a separate opinion.