Evans v. Town of Trenton

• Citation: 20 S.W. 614,112 Mo. 390
• Parties: EVANS v. TOWN OF TRENTON.
• Decision Date: 29 November 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 614

112 Mo. 390

EVANS v. TOWN OF TRENTON.

Supreme Court of Missouri, Division No. 2.

November 29, 1892.

TRIAL — BILL OF EXCEPTIONS — ATTORNEY — ARGUMENT.

1. The ruling on an application for a change of venue will not be reviewed where the application is not preserved by bill of exceptions.

2. Where plaintiff sued a town for injuries received by reason of a hole in a sidewalk, and her attorney, in argument, over the objections of defendant, referred to injuries received at the same time by another than plaintiff, and referred to plaintiff's condition in life, none of which was in evidence, and also stated how the jury stood on the former trial of the case, a new trial should be granted.

Appeal from circuit court, Grundy county; G. D. BURGESS, Judge.

Action by Addie Evans against the town of Trenton for personal injuries. Judgment was rendered for plaintiff, from which judgment the defendant appeals. Reversed.

The other facts appear in the following statement by THOMAS, J.:

Action for personal injuries. Judgment in the court below for plaintiff for $4,000, and defendant appeals.

Plaintiff, in her petition, alleges that the sidewalk on one of defendant's streets was by its negligence permitted to remain in a defective and dangerous condition for travel, and by reason thereof she fell and received serious and permanent injuries. The defendant's answer was a general denial, and contained a plea of contributory negligence on the part of the plaintiff. The evidence on the part of the plaintiff tended to show that the sidewalk in question was constructed of boards placed on stringers, the latter, at the point where the alleged injury occurred, being off the ground, so that the walk would sway up and down when a person passed over it; that two boards were off at the place and time of the accident, and had been loose and frequently off for months previous; that plaintiff, about 9 o'clock in the evening of May 11, 1890, while returning home from church in company with her daughter and two other ladies, stepped into the hole caused by the absence of these two boards, and fell into a ditch outside of the sidewalk, by which she received such a shock as to permanently impair her health and mind. No external injuries were proved to have been caused by the fall. Plaintiff also knew that this sidewalk was out of repair. On the part of defendant, the evidence tended to prove that the sidewalk was in reasonably safe condition; that Mrs. Burdoin and plaintiff walked from church together, Mrs. Burdoin being on the outside, and having plaintiff by the arm, the daughters of these two women being immediately in front of them; that Mrs. Burdoin and plaintiff were conversing, when the former stepped off the sidewalk, or stumbled and fell off, and thus caused plaintiff to fall; that they knew the defective condition of the sidewalk; and that the difference in plaintiff's condition as to mental and bodily strength and health, ability to work, and habits of life before and after her fall, were scarcely perceptible, some of the witnesses testifying that there was no difference whatever. The other facts necessary to an understanding of the points decided will appear in the opinion.

O. M. Shanklin and Geo. Hall, for appellant. Harber & Knight, for respondent.

THOMAS, J.

1. An application for change of venue constitutes no part of the record, unless made so by bill of exceptions. Stearns v. Railway Co., 94 Mo. 317,7 S. W. Rep. 270; State v. Ware, 69 Mo. 332. This being the law, we cannot notice the error defendant assigns in the court's action in overruling its application for change of venue, such application not being preserved by bill of exceptions in this case.

2. Defendant complains of the remarks of counsel. The record recites that one of plaintiff's attorneys, in his closing argument to the jury, "contrary to the objections of defendant's counsel and the admonitions of the court, stated of and concerning a former trial of this case at Chillicothe, Mo., that one of the defendant's attorneys swore that defendant could not proceed to trial in said cause, because plaintiff had amended her petition, and that defendant wanted to get physicians to examine plaintiff as to the injuries alleged, and that defendant had failed to do so; * * * that Mrs. Burdoin had testified that she had stepped into the alleged hole in the sidewalk, and the mark of her wounds and injuries were plain to be seen; that the jury saw her limping into court, and that she would be a cripple for life, — when the statements of the witness Burdoin as to her own injuries were voluntary on her part, and were objected to at the time by defendant's counsel, and excluded by the court; * * * that `There is Dr. Kimlin, who treated plaintiff at the time she was injured; why do you not put him on the witness stand?' He said at the time plaintiff was injured she had received concussion of the brain by the fall, and would be injured for life thereby; * * * that on a former trial of this case ten of the jurors were in favor of giving the plaintiff a judgment of five thousand dollars, and their opinions ought to have some weight with the jury in making up their verdict; that ten of their fellows had said that their verdict should have been five thousand dollars; * * * that the defendant, or its mayor, had made an affidavit for a change of venue in this case, and had sworn that defendant could not have a fair trial on account of the prejudices of the inhabitants of the county outside of the town, and wanted to amend the affidavit so as to include the inhabitants of the town, and the court would not let them do so; * * * that plaintiff was a poor widow, and had no husband; that he had gone before, and she was following in his footsteps, to an untimely grave, on account of the injuries she had received, — when there was no testimony to warrant said statements nor either of them; all of which said statements were made in violation of the admonitions of the court, and contrary to the objections of defendant's counsel, made at the time of making each and all of them."

Defendant printed what it claimed to be the whole record, but plaintiff, in her counter abstract, insists that defendant omitted a part of the record, which, omitting names, is as follows: "The bill of exceptions this day signed in the case of Addie Evans vs. The Town of Trenton failing to show the remarks of defendant's counsel in said cause, made preceding the remarks of ____, and to which ____'s was in reply, or the connection in which said remarks were made, I authorize plaintiff, her counsel, if they deem advisable, to file affidavits showing such remarks of opposing counsel, and the connection in which ____'s remarks were made. And I certify that during the argument of the cause ____ (one of defendant's counsel) in substance said: `The defendant has been harassed by this proceeding. We were compelled to go to Chillicothe, where the cause was continued by plaintiff. These women never fell in any hole. They cannot tell you how deep it was, or anything about it. If Mrs. Burdoin had struck her leg on the nail in the stringer, could she not tell you how deep the hole was? But she can't.' ____ and ____ both commented on the fact that plaintiff had not called Drs. Kimlin and Patton, and said to the jury in substance: `We (the defendant) could not call them. That they could only be used by the plaintiff. That, notwithstanding that Dr. Kimlin was sent to examine plaintiff, we had no right to call him. That plaintiff was afraid to put these doctors on the stand. She knew they would show what a robbery her claim was. She knew they would say she was not injured.' ____ also said to the jury, in substance: `We did not want to try this case in this county, and made an application for a change of venue against the inhabitants of the county outside of the town of Trenton, and the court overruled the application, and then they, (defendant's counsel,) without consulting Mayor Sykes, asked to be permitted to amend the affidavit for change of venue by striking out "outside the town of Trenton," and have Mayor Sykes reswear to the same. They had not consulted Mayor Sykes at the time of asking to make the amendment, and there is no evidence before you that he would have sworn to it.' Both ____ and ____, in the course of their argument, denounced plaintiff in the most vigorous terms. I signed the original bill of execution this A. M., without any misgivings as to the remarks of ____, considering them wholly immaterial; and, on the plaintiff's counsel's objection thereto, and before the bill of exceptions was filed, and within a few minutes after delivering it to ____, I went to him to get the same, that I might make such corrections as I deemed proper, but he (____) refused to permit me to have it, and in my presence picked same up, and took it to clerk, and had it filed. Hence, in justice to myself and parties, I made this statement, and ordered it filed in the cause. Feb. 23, 1891. G. L. WINTERS, special judge for trying case of Addie Evans vs. The Town of Trenton, Grundy circuit court, December term, A. D. 1890."

Plaintiff contends that defendant saved no exceptions at the time to the argument of her attorney. We think otherwise. The record recites that the remarks were made in violation of the admonitions of the court, and contrary to the objections of defendant's counsel, made at...