This is a suit in damages for personal injuries against the City of St. Joseph and the Brittain Investment Company, a corporation.
Plaintiff, a man sixty years of age, fell on ice on a sidewalk on the west side of Fifth street about eighty feet south of its intersection with Francis street. The petition alleges that "water from the roof and cornice of the building owned by defendant The Brittain Investment Company on the premises above described because of insufficient and defective guttering, drains and downspouts on said building, was permitted to flow upon, along and across the said sidewalk in front of said premises and in front of the premises immediately south and adjacent to the said premises of defendant The Brittain Investment Company, and permitted to freeze into thick ice on said sidewalk and said ice was negligently permitted by defendants to remain on said sidewalk and had thawed and melted and again frozen into rough and uneven ridges, forming a dangerous obstruction to persons *Page 204 attempting to walk along said sidewalk," etc., the negligence charged being directed against both defendants. Further plaintiff states the injury occurred on December 8, 1919; while plaintiff was walking south on the sidewalk on the west side of Fifth street, between Francis and Felix streets, "immediately south and adjacent to said premises above described," he slipped and fell, sustaining serious injuries, including a dislocation of the right hip joint and a fracture of the righ femur.
The defendant city filed a separate answer in the nature of a general denial and a plea of contributory negligence. Defendant Brittain Investment Company filed only a general denial. The reply was a general denial. The case was tried to a jury and resulted in a verdict for plaintiff and against both defendants in the sum of $5000. Both defendants appeal.
Defendant City of St. Joseph in its assignments of error charges first that the statutory notice served by plaintiff upon defendant city was erroneously admitted in evidence because (a) it is contradictory and confusing in pointing out the place of the accident, in that the locality given does not correspond with the distance therein stated, and (b) that there is a fatal variance in the place of the accident as stated in plaintiff's petition and evidence and that described in the notice, and (c) that the notice fails to state the "circumstances" of the injury as required by the statute and does not mention the downspout, the faulty construction of which plaintiff claims caused the injury.
The statute requiring the notice above referred to is section 7955, Revised Statutes 1919, and is as follows: "No action shall be maintained against any city of the first class on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, unless notice shall first have been given in writing, verified by affidavit, to the mayor of said city, within sixty days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, *Page 205 and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city."
The obvious purpose of this statute is to protect the city from unjust claims for damages and in aid thereof to locate with reasonable certainty the place where the accident occurred, and to describe the circumstances with sufficient definiteness to allow the city to institute an investigation to determine whether or not it is liable for the injury so reported. [Krucker v. City,195 Mo. App. 101.] The notice in the instant case states the accident occurred on the west side of Fifth street in the City of St. Joseph, Mo., "alongside and near the rear of a building located on the corner fronting on Francis street and about eighty feet from the south line of the intersection of Fifth street with said Francis street."
J.M. Garvey, for plaintiff, testified that he estimated the distance as stated in that part of the statutory notice quoted above, and that it was "about seventy-five feet — practically eighty feet measuring from the north edge of the sidewalk on Francis street; that the sidewalk measured ten feet in width, the first building on the corner of Fifth and Francis forty feet and the next thirty feet." On cross-examination this witness stated that he got this description from the records, but that he was testifying from a mental calculation and his own information, verified by the records, and that he "stepped off" the width of the sidewalk.
On behalf of defendants, W.K. Seitz, city engineer, testified that he measured the distance and that beginning at the building line on the south side of Francis Street, a point eighty feet south "would take you to the south line of the building occupied by the Shady barber shop;" and that he did not know the width of the Shady building; that the sidewalk on the south side of Francis street is ten feet in width; that starting from the center of the intersection of the two streets and measuring south eighty feet, "it would be twenty-five feet north of the south line of Shady barber shop." *Page 206
From these calculations and measurements it is clear that there is no material variance between the notice and the proof. There is no dispute as to the date of the accident as stated in the notice, and the character and circumstances of the injury are sufficiently described therein.
Following the injury and on the same day one Louis Kranitz, evidence officer in the city counselor's office, called at St. Joseph hospital, talked with plaintiff and reduced to writing plaintiff's statement. He testified the accident happened about one o'clock and that he had this conversation with plaintiff about four o'clock the same day; that he went to the place of the accident after the city counselor's office was notified and asked Mr. Shady about it; that "he (Shady) pointed at the sidewalk and said he fell just a little north of this place," and that the next day policeman Keely and White who had picked plaintiff up had indicated to him the place where the accident occurred.
The statutory notice required is not in any sense a pleading and may not be so strictly construed. The evidence tends to show that the city was fully advised of all the facts connected with the injury, within the meaning of the statute. None of the essentials was omitted nor insufficiently stated.
In Lyons v. City of St. Joseph, 112 Mo. App. 681, JOHNSON, J., held the notice insufficient because "the only statement contained in the notice relative to the cause of the injury is that it was received by plaintiff `while walking upon the sidewalks of said city at a point,' etc. . . . It could not be told from the notice how plaintiff claimed to have been injured." Likewise in Jacobs v. City of St. Joseph, 127 Mo. App. 671, ELLISON, J., held the notice insufficient in that it failed to state in any way the character of plaintiff's injuries. The difference between the notices discussed in those cases and the one before us is obvious. *Page 207