Brennan v. City of St. Louis.

• Decision Date: 20 December 1886
• Citation: 92 Mo. 482,2 S.W. 481
• Parties: BRENNAN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

2 S.W. 481

92 Mo. 482

BRENNAN v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

December 20, 1886.

1. MUNICIPAL CORPORATIONS — DEFECTIVE STREETS — ORDINARY CARE — ACCIDENTAL CAUSE.

In an action against a municipal corporation to recover damages for a personal injury resulting from a defective street, the plaintiff is entitled to recover if he exercised ordinary care and prudence, and the injury was attributable to the defective street, combined with some accidental cause.

2. SAME — DUTY AS TO REPAIR OF STREETS — INSTRUCTIONS.

Where the evidence showed that while the street had not been paved or macadamized, and sidewalks had not been built, it had been improved, and that an effort had been made to keep it in repair, an instruction to the jury that if the street was in a state of nature, and as the ground existed when dedicated, the plaintiff could not recover, was properly refused.

3. SAME — ACCEPTANCE OF STREET BY CITY — EVIDENCE AS TO REPAIRS.

Evidence of a witness that he had seen work done on the street after the occurrence, while not admissible to show negligence on the part of the city, may be received for the purpose of showing that the defect was one which the city was bound to repair, and as tending to show an acceptance of the highway as previously dedicated.¹

4. APPEAL — OBJECTION TO EVIDENCE NOT PROPERLY TAKEN.

In the trial of an action, formal objections to the evidence of a witness, specifying no reasons, are insufficient, and will not entitle the party making them to be heard in the appellate court on special reasons.

5. NEW TRIAL — IMPROPER LINE OF ARGUMENT ON TESTIMONY ADMITTED, BUT OBJECTED TO.

A judgment will not be reversed because of an improper line of argument pursued by counsel, based on certain evidence admitted by the court, but objected to at the time as immaterial and irrelevant, where the court was not asked and did not determine for what purpose the evidence was admissible, and where the real point of objection does not appear to have been brought to the attention of the court.

Appeal from St. Louis court of appeals.

Action to recover damages for a personal injury. Judgment for plaintiff. Defendant appealed.

O. G. Hess, for respondent, Brennan. L. Bell, for appellant, City of St. Louis.

BLACK, J.

The plaintiff brought this suit by her next friend to recover damages for injuries caused by a defective sidewalk, in Second street, in South St. Louis. A change of venue was awarded from the city to the circuit court of the county of St. Louis. The evidence tends to show that the street and sidewalk had been graded after the fashion of a dirt road, but neither had been paved. The street was traveled by the public to a large extent, and had been for several years, was lighted with gas-lamps, and was built up on both sides in the block where the accident happened. The water, in running across the street, near the house in which plaintiff's father resided, cut out a ditch at the sidewalk one or two feet deep, and of a like width. The ditch extended across the street. The plaintiff, a child three years old, was with her sister, thirteen years old, who was pushing a baby carriage with a baby in it, and were all on the sidewalk close to the ditch, when another little girl came up, stumbled against the plaintiff, and both fell into the ditch, and the plaintiff's leg was broken. There is evidence that the sidewalk and street were in the condition before described for three or four months before the accident, and that the person in charge of street repairs knew of its condition. There was also evidence to the effect that the street and sidewalk were in a reasonably safe condition for persons traveling or walking thereon.

1. The first contention is that plaintiff should have been nonsuited, because, from all the evidence, it appears the condition of the street was not the cause of the accident, but that it was caused by the stumbling of the other girl. It is true, no amount of care on the part of the city government can prevent children, or, for that matter, grown people, from stumbling. All this does not relieve the city from the necessity of keeping the streets in a reasonably safe condition, though the want of care on the part of the person injured may prevent a recovery. Cases are to be found where it seems to be held, under like circumstances, that, in order to recover, it must be proved that the injury was occasioned solely by the neglect of the defendant, and not the neglect of the defendant combined with some accidental cause. But this court, in discussing a like question in Bassett v. City of St. Joseph, 53 Mo. 290, said: "It is true that, if it had not been for the attempt of the mule to kick, the injury might not have occurred; and it is equally true that, if there had been no excavation at hand, the kicking of the mule would have been harmless." And further on the conclusion is reached that, if the plaintiff was...