23 Mo.App. 244 (Mo.App. 1886), Streeter v. City of Breckenridge

Citation:23 Mo.App. 244
Opinion Judge:HALL, J.
Party Name:HATTIE STREETER, Respondent, v. CITY OF BRECKENRIDGE, Appellant.
Attorney:CROSBY JOHNSON and F. H BRADEN, for the appellant. C. H. MANSUR, also for the appellant. CHAPMAN, and BROADDUS & WAIT, for the respondent.
Case Date:November 08, 1886
Court:Court of Appeals of Missouri

Page 244

23 Mo.App. 244 (Mo.App. 1886)




Court of Appeals of Missouri, Kansas City.

November 8, 1886

APPEAL from Caldwell Circuit Court, HON. JAMES M. DAVIS, Judge.


Statement of case by the court.

This was an action for the recovery of damages on account of injuries to the plaintiff alleged to have been caused by the negligent failure of defendant to keep the sidewalk on one of its streets in a reasonably safe condition.

The street in question was and had been for many years in constant and general use. Upon the street near the place of the accident was the post office. The sidewalk had been constructed many years prior to the accident. There was no evidence that the city had ordered the construction of the sidewalk by ordinance. The sidewalk was a board sidewalk, and, as the evidence introduced by the plaintiff tended to show, was in an unsafe condition. The sidewalk had been in general use ever since its construction.

The defendant examined Doctor Donaldson as a witness. The defendant claims that there was error in the rulings of the trial court shown by the following excerpts from the record:

" Doctor Donaldson testified: ‘ I know the plaintiff. Was called to see her in 1883. I am a physician and surgeon. Was called May 15, 1883, as a medical attendant.’

Witness was then asked what was her condition, and what medicine he prescribed for her. Plaintiff objected to the question and the court sustained the objection."

The bill of exceptions shows that Doctor Donaldson was recalled and testified: " I was called in as plaintiff's physician and served in that capacity for several months. I prescribed for her and examined her as to her physical condition."

" The defendant then propounded the question to him: ‘ What, if anything, was the cause of plaintiff's troubles?’

Plaintiff's counsel objected to the question and to allowing witness to answer the same. The objection was sustained and the court refused to allow witness to answer the same.

Defendant then asked witness if from his knowledge of plaintiff's condition he would attribute her disability in any way to any fall she may have received in May, 1883. Plaintiff's counsel objected to the question and the court refused to allow the witness to answer the same.

Defendant then asked witness whether he could, independent of any disclosure made to him by plaintiff while his patient, state the cause of her sickness or suffering. Plaintiff's counsel objected and the objection was sustained.

The defendant then asked witness to what extent hysteria was the source of plaintiff's troubles, and what was the extent of her disability. To each of these questions objections were made and sustained.

Witness was then asked whether, when he was first called as a physician, plaintiff informed him that she had fallen, or attributed her then condition to such a fall. Objection was made and sustained to the question."

The plaintiff had judgment and the defendant has appealed.

CROSBY JOHNSON and F. H BRADEN, for the appellant.

I. Municipal governments cannot delegate their powers. Corporate powers can only be exercised by the authorities specified in the charter. Cooley on Const. Lim. *204; Dill. Mun. Corp., sect. 212, p. 360; St. Louis v. Clemmons, 43 Mo. 389; Thomas v. Boonville, 61 Mo. 282; Saxton v. Beach, 50 Mo. 488.

II. Corporate authorities can only exercise their powers relating to streets by ordinance. Parol evidence is not competent to prove the existence or contents of an ordinance nor the duties of...

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