25 S.W. 366 (Mo. 1894), Britton v. City of St. Louis

Citation:25 S.W. 366, 120 Mo. 437
Opinion Judge:Gantt, P. J.
Party Name:Britton v. City of St. Louis et al., Appellants
Attorney:W. C. Marshall for appellant, city of St. Louis. E. B. Sherzer for respondent.
Case Date:February 27, 1894
Court:Supreme Court of Missouri

Page 366

25 S.W. 366 (Mo. 1894)

120 Mo. 437



City of St. Louis et al., Appellants

Supreme Court of Missouri, Second Division

February 27, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.


W. C. Marshall for appellant, city of St. Louis.

(1) There is no evidence to support the verdict. (2) The trial court erred in giving erroneous instructions asked by the plaintiff. Courts should tell the jury what issues are to be tried and not refer them to the pleadings. Such instructions are erroneous. Cocker v. Cocker, 2 Mo.App. 451; Edelmann v. Transfer Co., 3 Mo.App. 505; Remmler v. Shenuit, 15 Mo.App. 192; Hays v. Railroad, 15 Mo.App. 584: Proctor v. Loomis, 35 Mo.App. 482; Flieschman v. Miller, 38 Mo.App. 177. (3) Plaintiff's third instruction is erroneous in authorizing the jury to disregard the entire testimony of any witness believed to have knowingly sworn falsely to any material fact. There was no evidence authorizing the instruction. Bank v. Murdock, 62 Mo. 70; State v. Brown, 64 Mo. 367; White v. Maxey, 64 Mo. 552; Fath v. Hake, 16 Mo.App. 537; Smith v. Railroad, 19 Mo.App. 120; Batterson v. Vogel, 10 Mo.App. 235. (4) And such an instruction is not harmless where there are two issues in a case which the jury might decide either way. Fath v. Hake, 16 Mo.App. 537; Evans v. Railroad, 16 Mo.App. 522. (5) There being no controversy in this case that at the close of business hours on December 23, the contractor covered over the excavation, and placed a red signal light on the embankment, neither the contractor nor the city can be held liable thereafter, even if the light and the cover over the excavation were removed. Bell v. Independence, 41 Mo.App. 469; Myers v. Kansas City, 108 Mo. 480. (6) The verdict in this case is excessive.

E. B. Sherzer for respondent.

(1) Defendants' instructions for nonsuit were properly refused. There was testimony to go to the jury and abundant evidence to support the verdict. (2) Plaintiff's instruction number 1 did not refer the jury to the petition to find the issue. Corrister v. Railroad, 25 Mo.App. 619. (3) The negligence charged was properly left to the jury. Russell v. Town, 74 Mo. 480. (4) Plaintiff's instruction number 4 was properly given. So plaintiff's third instruction was justified by the evidence in the case. Seligman v. Rogers, 113 Mo. 642. (5) Defendants' refused instructions were properly denied. (6) The damages were not excessive. Gorham v. Railroad, 113 Mo. 408; Murray v. Railroad, 101 Mo. 236; Schmitz v. Railroad (Mo. App.) not yet reported; Conway v. City, 119 Ill. 489; Railroad v. Hill, 34 N.E. 646; Railroad v. Yarborough, 83 Ala. 238; Burdoin v. Trenton, 22 S.W. 728; Rosenkranz v. Railroad, 108 Mo. 9; Gurley v. Railroad, 104 Mo. 211; Darby v. Knapp, 2 Mo.App. 486; Craig v. Durette, 1 J. J. Marsh. 366.


Page 367

[120 Mo. 440] Gantt, P. J.

This is an action for personal damages, against Killoran, a contractor, and the city of St. Louis, for negligence in leaving a deep and dangerous excavation, in a public alley in said city, unguarded and exposed, whereby plaintiff was precipitated into it on the night of December 23, 1889, and received permanent injury to his left knee and suffered loss of time, being a day laborer, and his physician's bill, bodily pain and mental anguish to his damage in the sum of $ 10,000. The answer was a general denial and contributory negligence. The plaintiff recovered a judgment against both the contractor and the city for $ 3,500.

The place where the injury occurred was at the intersection of the north and south alley with the east and west alley in city block number 3447, being between Bell avenue on the north, Morgan street on the south, Vandeventer avenue on the east, and Sarah street on the west. Neither alley extended all the way through the block, but ran only to this intersection at right angles, just west of Vandeventer, forming practically one alley...

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