Flynn v. City of Neosho

• Decision Date: 14 March 1893
• Citation: 114 Mo. 567,21 S.W. 903
• Parties: FLYNN v. CITY OF NEOSHO.
• Court: Missouri Supreme Court

21 S.W. 903

114 Mo. 567

FLYNN v. CITY OF NEOSHO.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

MUNICIPAL CORPORATIONS — DEFECTIVE WALKS — CONTRIBUTORY NEGLIGENCE — APPEAL — OBJECTIONS WAIVED.

1. In an action against a city for personal injuries sustained from a defect in a sidewalk, the supreme court, on appeal, will presume that the trial court was right in admitting a plat of the street in evidence, where it has not been incorporated in the bill of exceptions.

2. Knowledge by plaintiff of the dangerous condition of the walk from which he fell in the nighttime does not preclude a recovery for the injuries, but is admissible to show contributory negligence.

3. The fact that one of plaintiff's attorneys was city attorney at the time of the accident, and that he procured the passage of an ordinance relating to the street in question, cannot affect plaintiff's rights.

4. A city which has been sued as a corporation, summoned, appeared, filed answer, and defended the suit as such, which has failed to deny under oath, as required by Rev. St. 1889, § 2186, the allegation that it is a corporation, and which is shown to fully exercise corporate powers, cannot be heard to say on appeal that there is no evidence in the record showing it to have been incorporated.

Appeal from circuit court, Jasper county; M. G. McGregor, Judge.

Action by James E. Flynn against the city of Neosho for personal injuries sustained on account of a defective sidewalk. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

James H. Pratt and James W. Brunk, for appellant. W. Cloud and L. W. White, for respondent.

BURGESS, J.

This is an action to recover damages against the defendant, a municipal corporation, for injuries sustained by the plaintiff on account of a defective sidewalk.

Plaintiff who was at the time of the injury a comparative stranger in the city of Neosho, only having been there two or three days, and in going from the depot of the St. Louis & San Francisco Railroad, which is located about a mile distant from the city, into the city proper, and in walking along North Spring street, during the darkness of the night, and in attempting to pass over the sidewalk where it was built about from three to five feet above the level or surface of the street, and without any guard rails to prevent pedestrians passing over the same from falling off, fell on the rocks below, and broke his left leg just below the knee. This defect in the sidewalk was well known to the city authorities. The venue of the cause was changed to the circuit court of Jasper county. Plaintiff recovered judgment for $1,150, and the defendant has appealed.

1. Defendant's first contention is that the court committed error in admitting in evidence, over its objection, what purported to be a plat or survey of North Spring street, made by one L. B. Robertson, for the reason that it had never been acknowledged or recorded, and was not the official map of the county surveyor. The "plat," as it is called, is not made part of the record, nor does it appear to have been offered in evidence. It is impossible for us to determine from this record whether it was properly admitted in evidence or not. Even if such was the case, as it is not incorporated in the bill of exceptions, and as the presumption is to be indulged that the ruling of the court was correct, and as it devolves on the party who alleges error...