Brown v. Cape Girardeau Macadamized & Plank-Road Co.

• Decision Date: 07 June 1886
• Citation: 1 S.W. 129,89 Mo. 152
• Court: Missouri Supreme Court
• Parties: BROWN and others v. CAPE GIRARDEAU MACADAMIZED & PLANK-ROAD CO.

1 S.W. 129

89 Mo. 152

BROWN and others v. CAPE GIRARDEAU MACADAMIZED & PLANK-ROAD CO.

Supreme Court of Missouri.

June 7, 1886.

1. NEGLIGENCE — HIGHWAY — INJURIES CAUSED BY IMPROPER CONSTRUCTION — INSTRUCTION TO JURY.

In an action to recover for injuries caused by a defect in a highway, an instruction which predicates plaintiff's right to recover on the single fact that the roadway was not properly constructed, without requiring the jury to go further, and find the additional fact that the injury complained of was occasioned by such improper construction, is erroneous.

2. SAME — ROAD COMPANY — OBSTRUCTION IN ROADWAY — PUNITIVE DAMAGES.

Where there is nothing in the evidence to show that the failure of a defendant road company to remove an obstruction from the roadway was either wanton or malicious, an instruction which authorizes the plaintiff to recover, and the jury to award, punitive or exemplary damages, for an injury caused by such obstruction, is erroneous.

3. EVIDENCE — EXPERT TESTIMONY AS TO CONDITION OF ROAD.

Expert testimony as to whether a roadway was in such condition as to afford a safe and convenient track for the passage of wagons and teams is inadmissible. It is for the jury to determine, from the facts proven, whether it was or was not in such condition.

Appeal from Cape Girardeau circuit court.

L. Brown, pro se. W. Cramer, for appellant, Cape Girardeau Macadamized Plank-road Co.

NORTON, J.

This suit was instituted in the circuit court of Cape Girardeau county, to recover damages for injuries alleged to have been sustained by plaintiff, Mrs. Theodosia Brown, while driving in a buggy on defendant's road, and alleged to have been occasioned by the neglect of defendant to construct its road as required by its charter, and in negligently leaving on its road, within the limits required by law to be kept open and free, an obstruction, at which the horse being driven by her shied, jumped, to one side, and overturned the buggy, inflicting upon her personal injury. On the trial plaintiffs obtained judgment for $500, from which defendant has appealed, and assigns for error the action of the court in refusing to receive proper evidence, and in giving improper instructions.

The first instruction given for plaintiffs told the jury that the artificial roadbed of defendant must be so constructed and kept as to be hard, smooth, and even surface, so as to afford and be convenient and safe for the passage of teams on the road; and that if t...