Roe v. City of Kansas

• Decision Date: 22 March 1890
• Citation: 13 S.W. 404,100 Mo. 190
• Parties: ROE v. CITY OF KANSAS.
• Court: Missouri Supreme Court

13 S.W. 404

100 Mo. 190

ROE v. CITY OF KANSAS.

Supreme Court of Missouri.

March 22, 1890.

DEFECTIVE SIDEWALKS — EVIDENCE.

1. Where a city opens a sidewalk to public travel, it is bound to keep every portion of it in repair.

2. The refusal of the court below to strike out incompetent evidence is not reversible error, where the facts sought to be proved thereby have been established by other and competent evidence.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

R. W. Quarles and W. A. Alderson, for appellant. Crittenden, McDougal & Stiles, for respondent.

SHERWOOD, J.

Action for damages caused by falling on a trap-door placed in the sidewalk. It was charged in the petition and was established at the trial that the hinges on the door had been broken, and that it was in such a condition that, by stepping upon some parts of it, it would tip up. It was in this way that the accident to plaintiff occurred. This defect in the door had existed for some months, and the injuries to plaintiff were of a permanent nature. The jury brought in a verdict giving damages at $5,500, and defendant appeals. Error is assigned but upon two points: (1) The refusal of the court to strike from the testimony of respondent's witness Zeno R. Brown that "from the appearance of the iron of the door hinges * * * I would judge the hinges had been broken for some time," and "the doctor saw her, and pronounced her nose broken." (2) The court erred in giving instruction No. 1 in behalf of the respondent.

As to the first assignment, it is sufficient to say that no exceptions were saved to the action of the court in refusing to strike out the testimony asked to be stricken out; and that if the testimony was obnoxious to criticism, as being incompetent, the same facts were established by competent evidence, and so the incompetent evidence did not hurt.

The first instruction asked by plaintiff is the following: "The jury are instructed that in this case the plaintiff seeks to recover damages for injuries alleged to have been received by her on account of a defect in a sidewalk on Wyandotte street, in said city, which it was the duty of the city to keep in repair. Her claim is based upon the negligence of the city in not repairing the defect, and her injury resulting therefrom. The city by its answer denies both the negligence and the injury. Under the evidence, it is for you to determine both of these questions. It was the duty of the city to keep the sidewalk in...