Davenport v. City of Hannibal
| Decision Date | 02 March 1892 |
| Citation | 18 S.W. 1122,108 Mo. 471 |
| Parties | Davenport v. The City of Hannibal, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. T. H. Bacon, Judge.
Affirmed.
D. H Eby for appellant.
(1) That portion of Dr. Hays' deposition concerning information which he acquired from his patient, Mrs Davenport, while attending her in a professional character and which was necessary to enable him to prescribe for her was incompetent evidence, and the court committed error in admitting the same in evidence over the objection of defendant. R. S. 1889, sec. 8925. The paper offered in evidence before the court, purporting to be a waiver by Mrs. Davenport of the protection of the statute, did not authorize the reading in evidence of depositions previously taken in the case. (2) The court erred in refusing instruction, numbered 4, asked by defendant. The petition avers that the accident occurred "after dark," and that "there was no light or signal to indicate danger." Dill. Mun. Corp. [4 Ed.] sec. 1010, p. 1268; Keating v. City, 84 Mo. 418; Bonine v. City, 75 Mo. 437; Loewer v. City, 77 Mo. 445. (3) The court erred in giving of its own motion its instruction, numbered 1, which submitted a question of law to the jury, to-wit, as to whether plaintiff "had a cause of action." Morgan v. Durfee, 69 Mo. 469; Hudson v. Railroad, 53 Mo. 525; Hickey v. Ryan, 15 Mo. 62. (4) The court erred in giving plaintiff's instruction, numbered 1. It limited the investigation to the sole question of a dangerous opening in the crossing, practically excluding from the jury the consideration of the points which were fairly raised by the evidence on each side, among others, the question as to whether defendant had been maintaining at night a light in the vicinity of the crossing. Fitzgerald v. Hayward, 50 Mo. 516; Hayner & Co. v. Churchill, 29 Mo.App. 676; Sullivan Case, 89 Mo. 169; Fink v. Phelps, 30 Mo.App. 431. (5) The damages awarded were manifestly excessive, and the court erred in refusing to set aside the verdict. The evidence of Mrs. Moss and Dr. Hearne conclusively shows that if the plaintiff's wife had given her injuries proper care and attention she would in all probability have experienced no serious results.
A. M. Alexander and R. E. Anderson for respondent.
(1) That section 8925, Revised Statutes of 1889, was intended simply as a protection to the patient, and not an absolute prohibition of the physicians from testifying under the circumstances therein provided for, is no longer an open question in this state. The authorities were fully examined, and the question decided on both reason and authority by this court in Groll v. Tower, 85 Mo. 249; Squires v. Chillicothe, 89 Mo. 226; Blair v. Railroad, 89 Mo. 334; Carrington v. St. Louis, 89 Mo. 208. (2) If the agent of defendant, who had the matter of lighting the lamps in charge, neglected to light the lamps on the night in question, then his negligence was the city's negligence, and his knowledge that he had not lighted the lamps was the city's knowledge. Mecham on Agency, sec. 729. (3) The court does not submit a question of law to the jury in instruction, numbered 1, given by the court on its own motion, but simply tells the jury what the law is. As qualified by the words, "under the instructions herein," it is in harmony with the ruling of this court in Hudson v. Railroad, 53 Mo. 525. (4) Plaintiff's first instruction does not limit the jury to the sole question of a dangerous opening in the crossing, and did not practically exclude from the consideration of the jury the points raised by the evidence, and did not exclude from the jury the fact that there was or was not a light there. There was no question of contributory negligence raised by defendant's answer. If the city had permitted a dangerous crossing to exist with notice of the dangerous condition of the same, then the existence of a light or danger signal would not justify the city in allowing the dangerous condition of the crossing to continue to exist, and the question as to the presence of a light could only bear on the question of the care and attention of Mrs. Davenport while walking over said crossing. Loewer v. Sedalia, 77 Mo. 445.
This is an action by plaintiff, husband of Fanny C. Davenport, to recover damages from defendant for loss of the services of his wife, and expenses of nursing and treating her on account of personal injuries resulting from the alleged negligence of the defendant in not keeping its streets in proper condition. The charge in the petition is that defendant maintained a sidewalk on the west side of Fourth street in said city, and, where that street intersected Washington street, it had undertaken to maintain a crossing over Washington street; that on the margin of Washington street, between the end of the sidewalk and the beginning of the crossing a space had been left open for the passage of the surface water, and as a crossing of this waterway large stepping stones had been planted; that the crossing of this waterway was negligently permitted to become "greatly out of repair, so that between the southern terminus of said crossing on Washington street, as the same was laid on the surface thereof and the nearest stepping stone in said waterway there was an opening about twenty-six inches in width and twenty inches deep, with the sides thereof precipitous, with no apron or covering over the same, without protection and without any light or signal to indicate danger, so that the same was on, and had been for a long time prior to, said tenth day of November, 1885, not reasonably safe for ordinary travel, of which said condition of said crossing defendant had notice."
The petition further charged that on the tenth of November, 1885, the wife of plaintiff came to the city of Hannibal for the purpose of visiting her married daughter, then living on the westerly side of said Fourth street, and south of said Washington street; that after dark on the evening of said tenth day of November, 1885, she, on her way to her said daughter's, started to cross said Washington street at the crossing aforesaid, going south, and was wholly unaware of the said condition of said crossing, presuming that the same was on a continuous level, there being no light or signal to indicate danger, when she unexpectedly stepped down and into said opening, and was violently thrown to the ground, from which she received serious injuries making necessary the amputation of one of her legs, after long suffering and disability.
"That by means of the premises the said Fanny C. Davenport for a long space of time, to-wit, ever since the receiving of said injuries, has been unable to perform her ordinary duties as the wife of said plaintiff; that plaintiff has been deprived, not only of her services and society, but was put to great expense, and did pay out a large sum, to-wit, the sum of $ 600, in and about the nursing and taking care of his said wife, and for medical attendance on her, and has suffered great distress of body and mind, besides being hindered and damaged in his business on account of the precarious condition of his said wife, produced by said injuries."
The answer was a general denial and a special plea of a former trial of the issues as to the liability of the city for injuries to Mrs. Davenport in a suit by her against the defendant, in which a judgment was rendered for defendant. No point is made on this answer, and no further consideration will be given to it.
No question is made as to the sufficiency of the evidence to support the verdict. We have read the evidence carefully, and think it tends to prove each issue tendered by the petition, and we will not state the evidence in detail.
I. Plaintiff was allowed, over defendant's...
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