Haynes v. Trenton

• Citation: 27 S.W. 622,123 Mo. 326
• Parties: Haynes v. Trenton, Appellant
• Decision Date: 19 June 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 622

123 Mo. 326

Haynes v. Trenton, Appellant

Supreme Court of Missouri, First Division

June 19, 1894

Appeal from Sullivan Circuit Court. -- Hon. G. D. Burgess, Judge.

Reversed and remanded.

George Hall, O. M. Shanklin, O. G. Williams and J. P. Butler for appellant.

(1) After respondent had exhibited to the jury the inflamed condition of his injured leg while on the witness stand appellant had the right to have its medical witnesses inspect it in the presence of the jury, that they might be better able to testify as to what caused its inflamed condition, and the court erred in refusing to permit said inspection. Hatfield v. Railroad, 22 N.W. 176; Schroeder v Railroad, 47 Iowa 375; Railroad v. Thul (29 Kan. 466), 44 Am. Rep. 659; White v. Railroad (61 Wis. 536), 50 Am. Rep. 154; Sibley v. Smith (46 Ark 275), 55 Am. Rep. 584; Wash v. Sager, 52 How. Prac. 334; Thompson on Trials, sec. 8859; Sheppard v. Railroad, 85 Mo. 629. (2) Instructions 11, 12 and 13, asked by appellant properly declared the law under the evidence in the case and the court erred in refusing to give the same. (3) The second instruction given on behalf of the plaintiff is erroneous in this, that it tells the jury that "it was the duty of defendant to keep its streets and sidewalks in good repair, free from obstruction and safe for travel," which requires defendant's walks to be perfectly good and absolutely safe, a duty the law does not require of it, but it is its duty to keep its walks in reasonably safe repair and reasonably safe for travel only. Brennan v. St. Louis, 92 Mo. 482; Kling v. City of Kansas, 27 Mo.App. 231; Bassett v. St. Joseph, 53 Mo. 290; Kiley v. City of Kansas, 87 Mo. 103; Carrington v. St. Louis, 89 Mo. 208; Maus v. City of Springfield, 101 Mo. 613; Dillon on Municipal Corporations [3 Ed.] sec. 1019. (4) The instruction is objectionable for the further reason that, to entitle plaintiff to recover, she was required to use reasonable care in passing over the walk. This omission is not cured by the words, "exercising ordinary care." See authorities above cited; Loosh v. Des Moines, 38 N.W. 384; Kendall v. Albia, 34 N.W. 833; Holloway v. Lockport, 7 N.Y.S. 363; Sandwich v. Dalon, 23 Am. State Rep. 598 (133 Ill. 177.); Salmon v. Trenton, 21 Mo.App. 182; Dillon on Municipal Corporations [3 Ed.], sec. 1020. These errors are not cured by defendant's instructions given, but are in conflict therewith. Staples v. Canton, 69 Mo. 592. (5) The respondent's second instruction is erroneous for the further reason that what was ordinary care on the part of respondent is a question of law and should have been defined by the court and not submitted to the jury. State v. Mitchell, 98 Mo. 657; Albert v. Besel, 88 Mo. 150; State to the use of Reyburn, 31 Mo.App. 385; Morgan v. Durfee, 69 Mo. 469; Carson v. Machine Co. 36 Mo.App. 462; Turner v. Railroad, 76 Mo. 261; Railroad v. Cleary, 77 Mo. 634; Kendig v. Railroad, 79 Mo. 207; Dyer v. Brannock, 2 Mo.App. 432; Booher v. Neese, 75 Mo. 383. (6) The fourth instruction given on behalf of plaintiff is erroneous, because it ignores the question of contributory negligence. Stocker v. Green, 94 Mo. 280; Birtwhistle v. Woodward, 95 Mo. 113; Bailey v. Beasley, 32 Mo.App. 469. (7) Appellant having charged respondent with contributory negligence, and offered evidence to support the same, the court erred in giving the sixth instruction asked by respondent. Ham v. Barrett, 28 Mo. 388; Nichols v. Winfrey, 79 Mo. 544; Moberly v. Railroad, 98 Mo. 183; Myers v. City of Kansas, 108 Mo. 480; Rapp v. Railroad, 106 Mo. 423; Bluedorn v. Railroad, 121 Mo. 258. (8) The damages assessed by the jury are excessive. Haynes v. Trenton, 108 Mo. 123.

Harber & Knight and Silver & Brown for respondent.

(1) The court did not err in overruling defendant's demand to have plaintiff's injured leg inspected by its physician in the presence of the jury. The matter was at most, for the discretion of the court, and its action thereon can not be assigned for reversible error unless it manifestly abused its discretion, which was not the case here. Owens v. Railroad, 95 Mo. 169; Sidekum v. Railroad, 93 Mo. 400; Shepard v. Railroad, 85 Mo. 629; Norton v. Railroad, 40 Mo.App. 642; Kinney v. Railroad, 39 Mo.App. 97. The court had no power to compel the plaintiff to submit his person to a physical examination by defendant's physicians. Railroad v. Botsford, 141 U.S. 250; Pennsylvania Co. v. Newmeyer, 34 C. L. J. 44 (Ind. S. C. and cases cited). Besides, there was no proper or timely application made by appellant for such examination, and hence could have well been refused on this ground alone. Hess v. Lowry, 122 Ind. 225; Railroad v. Bunker, 26 N.E. 178. (2) The trial court did not commit any error in refusing appellant's instructions numbers 11, 12 and 13. It is not error to refuse instructions the substance of which are embraced in those already given. Naylor v. Cox, 114 Mo. 232; Gorham v. Railroad, 113 Mo. 409; Payne v. Railroad, 112 Mo. 7. (3) The second instruction given for plaintiff stated the law correctly. The first objections made to it in appellant's brief were raised and overruled in a recent case decided in this court. Burdoin v. Trenton, 116 Mo. 358; Roe v. City, 100 Mo. 190; Fritz v. City, 84 Mo. 632; Russell v. City, 74 Mo. 480; 2 Dillon on Mun. Corp. [2 Ed.], sec. 789. It is error for the court to instruct the jury what circumstances do or do not constitute ordinary care. Wabash v. Elliott, 98 Ill. 481. (4) The respondent's fourth instruction is not erroneous because it ignores his contributory negligence; the latter question was fully submitted in other instructions given in the case notably in numbers 3 and 4 given for defendant. Owens v. Railroad, 95 Mo. 169; Daugherty v. Railroad, 97 Mo. 647. (5) The doctrine of the case of Sullivan v. Railroad, 88 Mo. 182, was rightly overruled in the two cases above mentioned. It is true the instruction says "the defendant is liable" but it necessarily means that it is liable under the circumstances and conditions stated in the instructions given in the case. Instructions must be taken as an entirety and not as though each separate one was intended to embody the whole law of the case. McKeon v. Railroad, 43 Mo. 405; Owen v. Railroad, 95 Mo. 169; Shortell v. City, 104 Mo. 114. (6) "A second appeal taken brings up for a review and decision nothing but the proceedings subsequent to the reversal." Herman on Estoppel, sec. 115; Ogden v. Larrabee, 70 Ill. 510. "We have already stated that the court submitted the case to the jury upon four instructions drawn in accordance with the theories which this court announced in its opinions in the two former appeals. This rendered the giving of any other instructions unnecessary; and the court could not be put in the wrong, and the judgment reversed, for refusal of any number of other instructions however correct in themselves, or appropriate." Hayden v. Grillo's Adm'r, 42 Mo.App. 1; Lead & Zinc Co. v. Ins. Co., 41 Mo.App. 406; Boon v. Shackleford, 66 Mo. 493. (7) The defendant did not properly or sufficiently plead contributory negligence; it should have set out the facts constituting it. Harrison v. Railroad, 74 Mo. 364. The only evidence tending to show contributory negligence is the testimony of some of defendant's witnesses (which plaintiff denied in his testimony) that plaintiff had made the statement that he was looking at a passing sleigh when he fell into the hole. Merely looking at a passing sleigh did not constitute or show contributory negligence; it was at most but a circumstance bearing on the question of plaintiff's using care. The recent cases referred to in appellant's brief are unsound in principle and should not be followed. The damages are not excessive. Much larger verdicts for similar or less injuries have been sustained in this court. Griffith v. Railroad, 98 Mo. 168 ($ 9,000 for a broken leg); Johnson v. Railroad, 96 Mo. 330 ($ 5,000 for lost eye); Daugherty v. Railroad, 97 Mo. 747 (verdict for $ 12,000 for loss of arm, and other injuries).

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

This is an action to recover compensation for personal injuries sustained by plaintiff. It is based on defendant's alleged negligence in omitting reasonable care to keep a sidewalk in proper condition for public use.

It is the same action that was before the second division on a former occasion. Haynes v. Trenton (1892), 108 Mo. 123, 18 S.W. 1003.

Plaintiff's case, shortly stated, is that he fell through a hole in the sidewalk of one of the public streets in the city of Trenton, Missouri. He was walking homeward, about 7 P. M., January 12, 1888, when the boards of the plank walk, provided for pedestrians on Fifth street, in that city, gave away. Plaintiff fell into the hole and upon some loose rocks below.

At the place of the accident, according to plaintiff's account, the footway was quite narrow; the planks were loose, worn and old; one was entirely out; and some of the cross pieces (or supports) were gone.

The sidewalk and streets were covered with snow at the time, though no negligence is charged against defendant on that account.

The hole into which plaintiff fell was between three and four feet deep.

Plaintiff described his injuries fully at the trial; but it will not be necessary to state them now particularly.

There was testimony that the defective condition of the sidewalk had existed for months before plaintiff's misfortune.

The defenses were a denial of the alleged negligence and a counter charge of contributory negligence.

The case was tried with the aid of a jury, who returned a verdict for plaintiff in the sum of $ 5,000, upon which judgment was rendered.

Defendant appealed,...