Fairgrieve v. City of Moberly

• Decision Date: 06 February 1888
• Parties: EMMA I. FAIRGRIEVE, by her next friend, Appellant, v. CITY OF MOBERLY, Respondent.
• Court: Kansas Court of Appeals

29 Mo.App. 141

EMMA I. FAIRGRIEVE, by her next friend, Appellant, v. CITY OF MOBERLY, Respondent.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Macon Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

HOLLIS & WILEY, for the appellant.

I. The court erred in overruling plaintiff's motion for a new trial and in arrest. Welsh v. McAllister, 13 Mo.App 89; 2 Sedgwick on Damages [7 Ed.] 66; 38 Wis. 300; 40 N.Y 551; Railroad v. Ashcraft, 48 Ala. 15; 26 Wis. 648; 2 Thomp. on Neg., sec. 58, p. 1266; Field on Dam. sec. 886; Reid v. Ins Co., 58 Mo. 421; State v. Alexander, 66 Mo. 163-4; Edens v. Railroad, 72 Mo. 212. Damages must be left largely to the discretion of the jury. It, however, is not at liberty to give any sum it pleases. Waldhier v. Railroad, 87 Mo. 38. The jury, in estimating plaintiff's damages, should consider every fact in the case which tended to increase the amount of her pain, or the extent of her injuries. Blair v. Railroad, 89 Mo. 384; Price v. Evans, 49 Mo. 396; Rose v. St. Charles, 49 Mo. 509; Pritchard v. Hewit, 91 Mo. 547.

II. The instructions refused on the part of plaintiff should have been given.

III. Instructions one, two, four, six, eight, nine, and ten for defendant are abstract, faulty, erroneous, based upon nothing, calculated to mislead, and should not have been given. Raysdon v. Trumbo, 52 Mo. 35, 297; Givens v. Van Studdiford, 4 Mo.App. 499; Bowen v. Railroad, 75 Mo. 426, 437; Condon v. Railroad, 78 Mo. 567; Homan v. Ins. Co., 9 Mo.App. 596; Pipkin v. Haucke, 15 Mo.App. 373.

IV. It was an error to permit defendant's counsel to ask, and witness to answer, the following: " Q. You may state whether or not it is a good and safe crossing. A. It was. Q. Could a person with ordinary prudence go over it with safety? A. Yes, sir." Eubank v. City of Edina, 88 Mo. 650; Roberts v. Lynch, 15 Mo.App. 456; Koons v. Railroad, 65 Mo. 593; Robertson v. Railroad, 84 Mo. 119; Brown v. Plank Road Co., 89 Mo. 152.

V. It was error to permit defendant's witnesses (councilmen) to testify as to what they thought the father of plaintiff said about plaintiff's having been hurt by playing on the timbers, and then instructing on it as evidence against plaintiff. This could only be admitted to impeach the testimony of the father, and was incompetent for any other purpose. O'Neal v. Crane, 67 Mo. 250; Fougue v. Burgiss, 71 Mo. 389; Sherlock v. Kimmell, 75 Mo. 77.

VI. It was error for the court to say to the jury: " This is no verdict. The costs are very heavy and another trial would incur very large costs, and for that reason you should agree on a verdict." Edens v. Railroad, 72 Mo. 212; State v. Alexander, 66 Mo. 163-4; Chinn v. Davis, 21 Mo.App. 363, and cases cited therein.

VII. The verdict should be set aside on account of the attempt of officer Forney and witness Thomas to influence the jury. Bradbury v. Coney, 62 Mo. 223; McDaniels v. McDaniels, 7 Am. Law Reg. [N. S.] 729; Hilliard on New Trials [2 Ed.] 207; State v. Andrews, 29 Conn. 104; Heffron v. Galloupe, 55 Me. 563; Irwin v. Bulla, 29 Ind. 95; 38 Ga. 216; 34 Ga. 379; 2 Vroom [N. J.] 52.

BEN. T. HARDIN, for the respondent.

I. This court will not reverse on account of the smallness of the damages. Pritchard v. Hewitt, 91 Mo. 548; Gregory v. Chambers, 78 Mo. 294.

II. The motion for new trial did not set up error in refusing instructions, and this court will, therefore, not consider it. Light v. Railroad, 89 Mo. 108; Howard Co. v. Burckhartt, 83 Mo. 43; Gaines v. Fender, 82 Mo. 497; State v. Burnett, 81 Mo. 120; State v. Emory, 79 Mo. 461; State v. Preston, 77 Mo. 294; Wakefield v. Richardson, 77 Mo. 589; Anthony v. Railroad, 76 Mo. 18; Rucker v. Rucker, 59 Mo. 17; Matlock v. Williams, 59 Mo. 105; Wetherall v. Harris, 51 Mo. 65; Brady v. Connelly, 52 Mo. 19; Carver v. Thornhill, 53 Mo. 283; Rotchford v. Cramer, 65 Mo. 48; Bollinger v. Carrier, 79 Mo. 318; Kimberlin v. Short, 24 Mo.App. 646; Hoffheimer v. Losen, 24 Mo.App. 653; Kauffman v. Harrington, 23 Mo.App. 572; City v. Dusky, 19 Mo.App. 20; Schlicker v. Gordon, 19 Mo.App. 479; Joyce v. Murnaghan, 17 Mo.App. 11.

III. And the instructions given by the court for both plaintiff and defendant, taken together, fully covered the case, and that is sufficient. Hamy v. Brasher, 51 Mo. 439; Porter v. Harrison, 52 Mo. 524; State v. Holme, 54 Mo. 153; Brownlee v. Hewitt, 1 Mo.App. 360; Karle v. Railroad, 55 Mo. 476; Meyers v. Railroad, 59 Mo. 223. It is not error to refuse certain instructions, if those given fully present the law of the case. Stanley v. Brokerage Co., 85 Mo. 411; Baum v. Fryrear, 85 Mo. 151; State v. Kelley, 85 Mo. 143; State v. Cooper, 83 Mo. 698; State v. Thompson, 83 Mo. 257; Ins. Co. v. Hauck, 83 Mo. 21; Cooper v. Johnson, 81 Mo. 483; Harris v. Lee, 80 Mo. 420; Condon v. Railroad, 78 Mo. 567; Nugent v. Curran, 77 Mo. 323; McGonigle v. Daugherty, 71 Mo. 259; Railroad v. Waldo, 70 Mo. 629; Whetstone v. Shaw, 70 Mo. 575; Deggendorf v. Bartholew, 69 Mo. 189; White v. Graves, 68 Mo. 218.

IV. The error of which appellant complains in point IV. is not a reversible one, because appellant opened up the investigation with his own witnesses. Appellant cannot be heard to allege that, as error of the trial court, which he invited the court to commit. Holmes v. Braidwood, 82 Mo. 616, 617; State v. Beaty, 25 Mo.App. 214; Dunn v. Henly, 24 Mo.App. 579; Loomis v. Railroad, 17 Mo.App. 340. Again, the record shows that when the questions were asked by respondent's counsel as to the safety of the crossing, appellant merely made a general objection. This court will not consider objections to evidence not specifically made, showing grounds of objection. Holmes v. Braidwood, 82 Mo. 610; Allen v. Mansfield, 82 Mo. 688; Baier v. Berberich, 85 Mo. 50. " Objections to the admission of evidence in the trial court will not be considered by this court, unless the record shows that the grounds of objection were sufficiently specified at the time of the introduction of the testimony." Johnson v. Railroad, 22 Mo.App. 597; Davis v. Hilton, 17 Mo.App. 319; Rhorer v. Brockhage, 15 Mo.App. 17; Kelley v. Clancy, 15 Mo.App. 519; Shelton v. Durham, 76 Mo. 434; Primm v. Raboteau, 56 Mo. 407; Margrave v. Ausmuss, 51 Mo. 561; Bauer v. Franklin Co., 51 Mo. 205; Baker v. Crandall, 78 Mo. 592, and cases cited; Lohart v. Buchanan, 50 Mo. 201. Nor unless called to the attention of the trial court in the motion for new trial. Wakefield v. Richardson, 77 Mo. 589; Snell v. Harrison, 83 Mo. 652. And it is not sufficient that exceptions were duly taken at the trial. Bank v. Allen, 68 Mo. 474.

V. If it was error to admit in evidence as to what the father of plaintiff had said, it was harmless, and, therefore, not reversible. Kinealy v. Burd, 9 Mo.App. 359; Moffett v. Turner, 23 Mo.App. 194; Stern v. Auction Co., 16 Mo.App. 473; Society v. Fitzwilliam, 12 Mo.App. 445; Reber v. Tower, 11 Mo.App. 199; Bir ney v. Shark, 78 Mo. 73; Anderson v. Shockley, 82 Mo. 250. Besides, plaintiff made no objections to the admission of such evidence, nor saved any exceptions thereto.

VI. The authorities under paragraph VI. do not apply. The opinion in Chinn v. Davis, 21 Mo.App. 363, lays down the true doctrine as adopted by this court. And that decision goes only to the extent that it is improper for a trial judge to communicate with the jury after the cause is committed to them, " " unless in open court." It is not contended, in this case, that the court below communicated with the jury in any other way than in open court. In the case of Edens v. Railroad, 72 Mo. 212, the judge urged the jury to " " " compromise," thereby invading their province. Again, in no place does the bill of exceptions show that appellant objected or saved any exceptions, at the time, to the remarks of the court to the jury; and appellant is out of shape here on that point. Thompson, Charging the Jury, p. 155, sec. 115, and cases there cited; also authorities on point IV. herein.

VII. The verdict should not be set aside " on account of the attempt of officer Forney and witness Thomas, to influence the jury." The court heard affidavits pro and con., and the presumptions are in favor of the actions of the court below. State v. Burns, 85 Mo. 47; Porth v. Gilbert, 85 Mo. 125; Goode v. Crow, 51 Mo. 212; State v. Co. Court, 51 Mo. 522; Acock v. Stewart, 57 Mo. 170; Stephens v. City of Macon, 83 Mo. 345; State v. Hill, 65 Mo. 84; Whitsett v. Ransom, 79 Mo. 258; Cook v. Railroad, 56 Mo. 380; State v. Smith, 65 Mo. 313. As to Forney, after seeing his affidavit, and those of the twelve jurors, the judge could have found in no other way than as he did. As to the misconduct of the jury, the refusal of the trial court to grant a new trial, where affidavits are heard, is no ground for reversal, unless it appears that there was an abuse of judicial discretion in the trial court. Morgan v. Ross, 74 Mo. 318. But the judge had a perfect right to urge the jury to agree, and to communicate with the jury in open court; and the publicity of the communication guards it from all objection, as well as impropriety. Thomp. Charging Jury, sec. 58; Thompson & Merriam on Juries, sec. 356; Allen v. Woodson, 50 Ga. 53; Pierce v. Rehfuss, 35 Mich. 53. And the presumptions are that the jury acted regularly, and plaintiff must show that they were prejudiced by the witness, Thomas, and others. But their action seems to have worked a prejudice, if at all, in favor of plaintiff.

PHILIPS P. J.

This is an action for the recovery of damages for personal injuries sustained by plaintiff consequent upon falling from one of defendant's sidewalks, or street-crossings. The plaintiff, at the time of the injury, was about ten...