13 S.W. 404 (Mo. 1890), Roe v. The City of Kansas

Citation:13 S.W. 404, 100 Mo. 190
Opinion Judge:Sherwood, J.
Party Name:Roe v. The City of Kansas, Appellant
Attorney:R. W. Quarles and W. A. Alderson for appellant. Crittenden, McDougal & Stiles for respondent.
Case Date:March 22, 1890
Court:Supreme Court of Missouri
 
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Page 404

13 S.W. 404 (Mo. 1890)

100 Mo. 190

Roe

v.

The City of Kansas, Appellant

Supreme Court of Missouri

March 22, 1890

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

R. W. Quarles and W. A. Alderson for appellant.

(1) The respondent's witness, Brown, usurped the functions of the jury in stating that he judged from their appearance that the hinges of the door had been broken for some time. The witness should have been permitted to state the facts only. Muff v. Railroad, 22 Mo.App. 584. (2) The further statement of the same witness, that "the doctor saw her and pronounced her nose broken," was the merest hearsay. (3) The first instruction given in behalf of the respondent declared as a matter of law that it was the duty of the appellant to keep the sidewalk in repair -- that is, all the sidewalk. It was fatally faulty. Tritz v. Kansas City, 84 Mo. 632; Bassett v. St. Joseph, 53 Mo. 290; Brown v. Mayor, 57 Mo. 156.

Crittenden, McDougal & Stiles for respondent.

(1) There is nothing in the objection to testimony mentioned, for the reason that even if the witness did state a conclusion, or opinion, he gave fully the facts and circumstances upon which it was based, and this he had the right to do. Eyerman v. Sheehan, 52 Mo. 221, 223; Greenwell v. Crow, 73 Mo. 638; 1 Whart. Ev., sec. 510 et seq. and cas. cit., notes; Culver v. Dwight, 72 Mass. [6 Gray] 444. Besides which this testimony was not only not contradicted, but there was abundant evidence of a number of other witnesses that the defect in the sidewalk had existed for a long time, and that, without fault on her part, plaintiff was seriously and permanently injured thereby. (2) Several instructions were given on each side; one for plaintiff is alone copied and commented upon. Even if that single instruction be "fatally faulty," as asserted (which we deny), yet, as defendant offered instructions upon the same theory (which were given), and as all the instructions given, "if taken as a whole series, applying to every possible phase of the case, fairly present the law to the jury and are not calculated to mislead, this court will not reverse the judgment on the ground that all is not contained in a single instruction." Meyers v. Railroad, 59 Mo. 223; Karle v. Railroad, 55 Mo. 476, 482; Gamache v. Piquignot, 17 Mo. 310, 325; Davis v. Brown, 67 Mo. 313; Noble v. Blount, 77 Mo. 235.

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