Haynes v. Town of Trenton

• Decision Date: 02 February 1892
• Citation: 18 S.W. 1003,108 Mo. 123
• Parties: Haynes v. The Town of Trenton, Appellant
• Court: Missouri Supreme Court

18 S.W. 1003

108 Mo. 123

Haynes v. The Town of Trenton, Appellant

Supreme Court of Missouri, Second Division

February 2, 1892

Appeal from Mercer Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed and remanded.

R. A DeBolt, W. E. Clark, O. M. Shanklin, H. J. Alley and Geo Hall for appellant.

(1) Appellant claims that the fifth instruction, given on behalf of the plaintiff, is erroneous in this: First. That it is not in harmony with the issues made by the pleadings, but tenders a new and different issue. Second. This instruction is objectionable for the further reason that it is in conflict with, and a contradiction of, the other instructions especially the second, third, fourth and sixth given on behalf of plaintiff, the eighth given on behalf of appellant and the sixth asked by appellant and modified and given by the court. Third. Said instruction is also unsupported by the evidence in the case. Fourth. Appellant's sixth instruction, as asked, conformed strictly to the pleadings and evidence in the case, and should have been given as asked. The testimony all showed that plaintiff got hurt by falling in the hole and getting his foot between two rocks in the bottom of the hole, and there is no evidence or allegation in the pleadings that he got hurt in any other way. Appellant had the right to have this phase of the case placed before the jury in plain and direct terms. Owens v. Owens, 22 Iowa 270; Cohn v. Reid, 18 Mo.App. 115; Ridens v. Ridens, 29 Mo. 470. (2) The improper remarks of counsel for plaintiff in his argument to the jury constituted reversible error. Sidekum v. Railroad, 93 Mo. 400; Fathman v. Tumilty, 34 Mo.App. 236; Bishop v. Hunt, 24 Mo.App. 373; Marble v. Walters, 19 Mo.App. 134; Brown v. Railroad, 66 Mo. 588. (3) The damages were excessive.

Harber & Knight and Silver & Brown for respondent.

(1) Plaintiff's fifth instruction conforms to the issues raised by the pleadings, and is, therefore, not open to the objection made by appellant. Even sidewalks are deemed to constitute a part of the streets. The hole was in the street; the plaintiff fell off the sidewalk into the hole; ergo, he fell from the sidewalk into the street. 2 Dillon, Mun. Corp. [4 Ed.] sec. 780n. Again, defendant's own instruction, numbered 4, given for it submits the issue whether or not plaintiff stepped off the sidewalk and was thereby injured. It is, therefore, estopped to complain of plaintiff's instruction in this regard. M. & C. Co. v. Guggemos, 98 Mo. 391; Harrington v. Sedalia, 98 Mo. 583; Whitmore v. Knight, 100 Mo. 36. (2) Nor is appellant's second point well taken, for the evidence is clearly to the effect that the excavation or hole was in the street adjoining the sidewalk, that there were rocks in its bottom, and that plaintiff fell from said sidewalk into the hole on the rocks, catching his foot between them, thereby breaking his leg. (3) The authorities cited by appellant in support of the first and second points of its brief, are, therefore, inapplicable to facts of this case, and are irrelevant. (4) Even if the facts as to the pleadings and evidence were as claimed by appellant, yet the variance or divergence between the petition and plaintiff's fifth instruction would be so slight and trivial as not to constitute reversible error. Reeves v. Larkin, 19 Mo. 192; Wise v. Railroad, 85 Mo. 178; Dowling v. Allen, 102 Mo. 213; R. S. 1879, secs. 2096-7. A judgment will be reversed only for errors materially affecting the merits of the action. R. S. 1879, sec. 2303; Hanford v. Kansas City, 103 Mo. 172; Gordon v. Eans, 97 Mo. 587. (5) The sixth instruction asked by appellant was properly given as modified or amended by the court. First. The plaintiff was only required to use ordinary care to avoid the injury. Craig v. Sedalia, 63 Mo. 417; 2 Dillon on Mun. Corp. [4 Ed.] sec. 1020. Second. The court's modification and change in appellant's instructions, numbered 6 and 10, were entirely proper, and doubtless conceded to be so by appellant's counsel at the time, as they made no complaint of the court's action in this regard in their motion for new trial, and under repeated rulings of this court cannot now complain. State v. Elkins, 101 Mo. 344; State v. Grimes, 101 Mo. 188; State v. Rambo, 95 Mo. 462; Griffith v. Hanks, 91 Mo. 109; Green v. Walker, 99 Mo. 68; State v. Burns, 99 Mo. 471; Lancaster v. Ins. Co., 62 Mo. 121; State ex rel. v. Rucker, 59 Mo. 17. (6) The alleged improper remarks of counsel cannot avail appellant. First. No exceptions were saved to the same as required by repeated rulings of this court. State v. Hayes, 81 Mo. 574; State v. Pagels, 92 Mo. 301; Sidekum v. Railroad, 93 Mo. 400; State v. West, 95 Mo. 139; Koegel v. Givens, 79 Mo. 77. Second. The argument of counsel is a matter particularly under the control of the trial court, which hears both sides, and can determine how far the objectionable remarks and illustrations of one side are provoked by those of the other. This the supreme court cannot do, and ought, therefore, to be very reluctant to reverse in any case on such ground. In fact, reversing for this reason has been rightly exploded, even in a case involving human life. State v. Young, 105 Mo. 634. (7) The verdict having been reduced to $ 4,500 by the remittitur is not excessive when taking into consideration the painful and permanent character of the injury, loss of time and medical expenses, etc. Much larger verdicts for less injuries have been frequently sustained in this court. Griffith v. Railroad, 98 Mo. 168 ($ 9,000 for broken leg); Johnson v. Railroad, 96 Mo. 340 ($ 5,000 for lost eye); Gurley v. Railroad, 104 Mo. 211.

OPINION

Gantt, P. J.

This is an action for damages alleged to have been caused by the defendant's negligence in maintaining a defective sidewalk and leaving a dangerous excavation alongside of the walk, into which the plaintiff was precipitated, and his leg broken, on the night of the twelfth of January, 1888, about seven o'clock, P. M.

The defense was a general denial and contributory negligence. The evidence on the part of the plaintiff tended to show that on the evening in question he attempted to pass over a crossing which the city had placed over a ditch dug alongside of the street, and extending under the sidewalk. He fell over into the hole, and caught his foot between the rocks in its bottom, and broke his leg; that he was confined to his house two months and more; that two bones were broken; that the injury was very painful, and he had not recovered entirely at the trial; that he was earning $ 40 a month when hurt; that it was fourteen weeks and five days before he could work. He also offered evidence tending to show the crossing was out of repair; that it was springy; that the hole adjoining and under the crossing was twenty inches deep, and had loose rock in the bottom; that it was thirty-five inches wide; that the walk had been in this condition for a year prior to the accident; that plaintiff stepped off the boards into the hole.

On the part of the defendant, there was evidence that the plaintiff had made contradictory statements as to how he sustained the injury.

Aaron Bange testified that the plaintiff told him he stepped upon a pile of rock at the end of the sidewalk, and it turned and he fell. He said nothing about a hole. The rock was at the east end of the crossing. He said the rock turned with him.

Hughes testified that the plaintiff pointed out to him the place he was hurt, and it was ten or fifteen feet west of the culvert. Bain and Maggard testified to statements varying from the plaintiff's evidence. As to the cause of the accident, the defendant offered evidence that the plaintiff was looking backwards at a party in a sleigh, and, while so doing, walked off the sidewalk and fell. This was shown both by witnesses who saw him, and by his declarations.

As to the character of injury, Dr. Collier testified he was called to see Haynes; found an injury in his leg. His leg was fractured; the small bone was broken, and a partial fracture of large bone; leg was much swollen; set the bone. It was two months before he got out. The injury, he thought, was permanent. His ankle was stiff before the fracture. On cross-examination, he stated he had not seen the leg before this accident. Could not tell how much of the swelling was caused by the former injury. He said, "You can always detect where a bone has been fractured."

The plaintiff, in his own behalf, said he was wounded in his ankle by a shell in the battle of Glasgow, Missouri, in 1864. The shell injury never hurt him after it got well, save to cause a hitch in his walk. Ankle was not swollen from shell wound. He contradicted all the witnesses as to his statements. Denied that he told Bitts that he would have a fat thing if he could get damages off the town, his pension and insurance. He had no recollection of having told the surgeons who composed the pension board, when they examined him for a pension, that he experienced no difficulty from the hurt from falling off the sidewalk, and that all his injury came from the shell wound. The accident for which he sued happened January 12, 1888. In May, 1888, he was examined for a pension.

Two of the board, Drs. Patton and Hendrickson, testified that they examined him in May, and his leg was in same condition then as at the trial. The ankle was stiff. Plaintiff told them at that time it was caused by the shell wound at Glasgow in 1864. "I told him," said Dr. Patton, "to draw the line as to how much of the injury belonged to the shell and how much to the breaking of the leg." He said the injury from the break was above the ankle. The damage suit was then pending. He said all the injury to the ankle was caused by the shell. Hendrickson testified to the same...