1 S.W. 129 (Mo. 1886), Brown v. Cape Girardeau Macadamized & Plank-Road Co.

Citation:1 S.W. 129, 89 Mo. 152
Opinion Judge:Norton, J.
Party Name:Brown et al. v. Cape Girardeau Macadamized and Plank Road Company, Appellant
Attorney:W. W. Cramer for appellant. Lewis Brown for respondents.
Case Date:June 07, 1886
Court:Supreme Court of Missouri
 
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Page 129

1 S.W. 129 (Mo. 1886)

89 Mo. 152

Brown et al.

v.

Cape Girardeau Macadamized and Plank Road Company, Appellant

Supreme Court of Missouri

June 7, 1886

Appeal from Cape Girardeau Circuit Court. -- Hon. J. D. Foster, Judge.

Reversed.

W. W. Cramer for appellant.

(I) The court erred in refusing to permit plaintiff's witnesses, Cross and Ellis, on cross-examination, to express their opinion as to whether the gravel road at the place where the accident occurred, was covered artificially a sufficient width to afford a convenient and safe track for passage of wagons and teams. Sess. Acts 1851, p. 134, sec. 10; Ibid, 1853, p. 351; Angell on Highways [2 Ed.] sec. 259; Wood on Nuisances, 295; Shearman & Redf. on Negligence [3 Ed.] sec. 374; Wharton's Evidence, sec. 511; Eyerman v. Sheehan, 52 Mo. 221; Greenwell v. Crow, 73 Mo. 638. (2) Defendant should have been permitted to cross-examine the witness, Haffner, in regard to plaintiff's declarations as to the cause of the accident. (3) Plaintiff cannot recover unless she was using ordinary care. Craig v. City, 63 Mo. 117; Buesching v. Gas Light Co., 73 Mo. 219; Sedgwick on Damages, 160. (4) The defendant cannot be held liable unless it had notice of the defect and failed to repair the same within a reasonable time. Market v. St. Louis, 56 Mo. 189; Russell v. Columbia, 74 Mo. 490; Bonine v. Richmond, 75 Mo. 437. (5) The proper remedy for an unreasonable obstruction in a highway is by indictment, although any one sustaining special injury may bring a civil suit to recover damages. Beaudeau v. City, 71 Mo. 392. In a civil action for damages for an act which is also indictable, punitive or exemplary damages are also recoverable. Fay v. Parker, 16 Am. Rep. 270; Koerner v. Oberly, 26 Am. Rep. 34. (6) The damages should only have been compensatory. Engle v. Jones, 51 Mo. 316; Perkins v. Ry., 55 Mo. 201; Graham v. Ry., 66 Mo. 536; Morgan v. Durfey, 69 Mo. 469.

Lewis Brown for respondents.

(1) The question asked of some of the witnesses, if in their opinion two teams could safely pass each other where the accident occurred, was properly ruled out. It was not a matter of opinion. (2) The instructions for plaintiff are supported by the cases of Whalen v. Ry., 60 Mo. 325; Edmonson v. Fredenheit, 36 Mo. 226.

OPINION

[89 Mo. 153] Norton, J.

This suit was instituted in the circuit court of Cape...

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