50 S.W. 84 (Mo. 1899), Goble v. Kansas City

• Judge: ROBINSON, J. Brace, P. J., and Valliant, J., concur; Marshall, J., absent.
• Parties: Goble, Appellant, v. Kansas City
• Docket Number: .
• Date: 07 March 1899
• Court: Missouri Supreme Court
• Citation: 50 S.W. 84,148 Mo. 470

Page 84

50 S.W. 84 (Mo. 1899)

148 Mo. 470

Goble, Appellant,

v.

Kansas City

Supreme Court of Missouri, First Division

March 7, 1899

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

George W. Day for appellant.

(1) In a suit for damages for injuries received in a fall on a defective sidewalk, proof of like accidents which occurred at the same place and while the sidewalk was in the same condition as when the plaintiff was injured, is admissible in his favor. District of Columbia v. Armes, 107 U.S. 519; Quinlan v. Utica, 11 Hun. 217; s. c., 74 N.Y. 603; Osborne v. Detroit, 32 F. 36; Delphi v. Lowrey, 74 Ind. 520; Augusta v. Hafens, 61 Ga. 48; Gilmer v. Atlanta, 77 Ga. 688; Chicago v. Powers, 42 Ill. 169; House v. Metcalf, 27 Conn. 631; Calkins v. Hartford, 33 Conn. 57; Darling v. Westmoreland, 52 N.H. 401; Hill v. Railroad, 55 Me. 438; Kent v. Lincoln, 32 Vt. 591. (2) This court will reverse the action of the trial court in rejecting evidence, upon a general objection, if the rejected evidence was competent for any purpose. Chaffee v. Railroad, 64 Mo. 193.

Herbert S. Hadley for respondent.

(1) As all the evidence is not set forth in the abstract of the record, it is impossible to determine whether or not the question asked was a proper one, and the judgment of the lower court should be affirmed in the absence of a clear showing that error was committed at the time of the trial. Vaughn v. Railroad, 34 Mo.App. 141; Wilson v. Board of Education, 63 Mo. 137; Bank v. Aull, 80 Mo. 199; McMillen v. State, 13 Mo. 31; Peck v. Choteau, 91 Mo. 138; Holmes v. Braidwood, 82 Mo. 610. (2) The court will sustain the action of the trial court in sustaining an objection to the evidence in case the objection made was a general one, if it is valid on any ground. State v. Hope, 100 Mo. 347. (3) Where the abstract of the record fails to disclose that the answer of the witness would have been competent evidence, or fails to state the tenor of such evidence, the appellate court will not reverse the judgment for the failure of the trial court to admit it. Bank v. Cleveland, 64 Mo.App. 545; Kraxberger v. Roiter, 91 Mo. 404; Bank v. Aull, 80 Mo. 199; Berthold v. O'Hara, 121 Mo. 88; Jackson v. Hardin, 83 Mo. 175. (4) The question asked was incompetent and immaterial and the objection was properly sustained. Branch v. Libbey, 78 Me. 321; Matthews v. Cedar Rapids, 20 Am. St. Rep. 436; Langworthy v. Green, 95 Mich. 93; Bloor v. Delafield, 69 Wis. 273; Shoomaker v. Wilbraham, 110 Mass. 134; Hubbard v. Concord, 35 N.H. 52; Phillips v. Willow, 70 Wis. 6; Parker v. Pub. Co., 69 Me. 173; Hudson v. Railroad, 59 Iowa 581; Tem. Hall Ass'n v. Giles, 33 N. Y. Law, 260; Railroad v. Wynant, 114 Ind. 525; Stoker v. Railroad, 91 Mo. 509.

George W. Day for appellant in reply.

(1) It is not necessary in a bill of exceptions to set out all the evidence, except where the verdict is alleged to be against the evidence. Barge Resort v. Brooke, 10 Mo. 531; Carter v. Holman, 60 Mo. 498; Silvey v. Sumner, 61 Mo. 253; Walls v. Gates, 4 Mo.App. 1; Cummings v. Denny, 6 Mo.App. 602; Range Co. v. Alexe, 28 Mo.App. 188. (2) The materiality of the evidence excluded may be inferred from the question; therefore it was unnecessary for the plaintiff to make a tender of it. Armstrong v. Farrar, 8 Mo. 627; State v. Leland, 82 Mo. 260; Jackson v. Hardin, 83 Mo. 175; Kraxberger v. Roiter, 91 Mo. 404. (3) It was unnecessary for plaintiff to make a tender of proof for the further reason that the trial court, in express terms, limited the inquiry to the condition of the walk, and it would have been presumption on the part of counsel to make a tender after such a ruling. 1 Thompson on Trials, sec. 686; Scripps v. Reilly, 38 Mich. 14.

Herbert S. Hadley for respondent on motion to dismiss appeal.

It is submitted by respondent that this appeal should be dismissed for the reasons: (a) That such an abstract of the record, as has been filed by the appellant in this case is not in accordance with the rules of this court. (b) That the abstract of the record that has been filed is not sufficient to give to this court "a full and complete understanding of all the questions presented for decision." (c) That the abstract of the record fails to disclose what the evidence excluded at the trial was. Rule 6 of the Supreme Court; Deal v. Cooper, 94 Mo. 62; Sebree v. Patterson, 92 Mo. 451; Stokes v. Burns, 132 Mo. 214; Late v. Bancroft, 1 Mo. 163; Jackson v. Magruder, 51 Mo. 55; Bank v. Armstrong, 92 Mo. 265; Williams v. Mitchell, 112 Mo. 300; State ex rel. v. Jones, 131 Mo. 194; Spiva v. Mining Co., 88 Mo. 68; Wilkerson v. Allen, 67 Mo. 502; Brand v. Cannon, 118 Mo. 595; Long v. Long, 96 Mo. 180; Jayne v. Wine, 98 Mo. 404; Craig v. Scudder, 98 Mo. 664; Clark v. Fairly, 100 Mo. 236; Snyder v. Free, 102 Mo. 325; James v. Railroad, 107 Mo. 480; Cunningham v. Railroad, 110 Mo. 208.

George W. Day for appellant on motion to dismiss appeal.

Respondent's motion to dismiss this appeal should be denied because: (a) As to the first and second grounds thereof, the motion fails to call the court's attention to the specific evidence which is omitted, or to any evidence which is unfairly or partially abstracted. Garrett v. Mining Co., 111 Mo. 279. (b) The third paragraph of respondent's motion is not a proper ground for...