Young v. The City of Webb City

• Decision Date: 06 June 1899
• Citation: 51 S.W. 709,150 Mo. 333
• Parties: Young v. The City of Webb City, Appellant
• Court: Missouri Supreme Court

51 S.W. 709

150 Mo. 333

Young v. The City of Webb City, Appellant

Supreme Court of Missouri, Second Division

June 6, 1899

Appeal from Vernon Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

Frank L. Forlow for appellant.

(1) The demurrer offered by appellant at the close of respondent's evidence, should have been given, as witness Reed, the only witness who was interrogated on the subject testified that the walk, where the accident happened, was a good walk until it was broken by a horse, and that it was broken on the 11th day of November, 1894, and that was only one day before the accident. This was not sufficient time to charge the appellant with notice, and there was no testimony to show that the city had notice of any defect in the walk and respondent's testimony showed that before the walk was broken by the horse the walk was in good condition. Schweikhardt v. St. Louis, 2 Mo.App. 571; Basset v. St. Joseph, 53 Mo. 290; Bonine v. Richmond, 75 Mo. 437; Carrington v. St. Louis, 89 Mo. 208; Yocum v. Trenton, 20 Mo.App. 489; Franke v. St Louis, 110 Mo. 516; Smith v. St. Joseph, 42 Mo.App. 392; Barr v. Kansas City, 105 Mo. 550; Fritz v. City of Kansas, 84 Mo. 632. (2) Respondent's instruction number two, on the measure of damages, is clearly erroneous, in assuming physical injuries were inflicted when that was a contested question and should have been submitted to the jury, under proper instructions, and the jury permitted to pass upon that question, as well as the question of the amount of damages. It being a contested question, whether she received the physical injury, on the sidewalk as alleged in her petition, it should not have been put to the jury in a manner to indicate that it was conceded, as was done by instruction number two. Plumber v. City of Milan, 70 Mo.App. 598; Hawes v. The K. C. Stock Yards Co., 103 Mo. 60; Moffett v. Conkling, 35 Mo. 453; Sawyer v. Railroad, 37 Mo. 240; Wilburn v. Railroad, 36 Mo.App. 215; Railroad v. Sykes, 96 Ill. 162; 2 Thompson on Trials (1 Ed.), sec. 2295; Fullerton v. Fordyce, 144 Mo. 519. (3) The verdict of $ 5,000, is so excessive as to indicate that it is the result of passion, prejudice or some improper motive on the part of the jury, and under the rulings of the Supreme Court should, for that reason, be reversed. Gurly v. Railroad, 104 Mo. 211; Furnish v. Railroad, 102 Mo. 438; Burdich v. Railroad, 123 Mo. 240; Railroad v. Hull, 78 Tex. 657. (4) The court erred in giving the instruction number one, at the request of respondent, for it is not based on the evidence offered in the cause, in this, that there is no testimony that the sidewalk was in a dangerous condition for travel and that the city permitted it to remain in such condition after it knew or could have ascertained the condition thereof. There was no evidence to support this part of the instruction and although it declares the law, yet if there was no evidence in this case on that proposition, the instruction should not have been given. Gorham v. Railroad, 113 Mo. 408; Harrison v. White, 56 Mo.App. 175; Moore v. Hawk, 57 Mo.App. 495; Benjamin v. Railroad, 50 Mo.App. 602; Harding v. Wright, 119 Mo. 1; Mater v. Railroad, 105 Mo. 320; Evans v. Rapid Transit Co., 106 Mo. 594.

L. L. Scott, W. M. Bowker and G. S. Hoss for respondent.

(1) Where the evidence is conflicting, the Supreme Court will not undertake to weigh it in order to determine upon which side the weight preponderates. This is the province of the jury, the triers of the facts. Seckinger v. Mfg. Co., 129 Mo. 603; State ex rel. v. Hope, 121 Mo. 41; Baum v. Fryrear, 85 Mo. 151; O'Connell v. Railroad, 106 Mo. 482; Franke v. St. Louis, 110 Mo. 516. (2) Where there is any evidence at all to sustain the issue, a demurrer to the evidence should not be sustained. Bender v. Railroad, 137 Mo. 240; Guthridge v. Railroad, 105 Mo. 520; Baum v. Fryrear, 85 Mo. 151. (3) Notice on the part of a city of a defect in a street may be inferred from long continuance thereof. Maus v. Springfield, 101 Mo. 613; Carrington v. St. Louis, 89 Mo. 208; Jordan v. Hannibal, 87 Mo. 673; Bonine v. Richmond, 75 Mo. 437. (4) Instruction number 2, on the measure of damages, given for respondent and complained of by appellant, has been expressly approved by the Supreme Court. Chilton v. St. Joseph, 143 Mo. 199; Fullerton v. Fordyce, 144 Mo. 532; Taylor v. Iron Co., 133 Mo. 363; Schmitz v. Railroad, 119 Mo. 269; Burdoin v. Trenton, 116 Mo. 360; Haniford v. City of Kansas, 103 Mo. 174; Maxwell v. Railroad, 85 Mo. 101; Russell v. Columbia, 74 Mo. 488. (5) The verdict of $ 5,000 is not excessive. Barr v. Kansas City, 121 Mo. 22; Hollenbeck v. Railroad, 141 Mo. 97; Burdict v. Railroad, 123 Mo. 221; O'Connell v. Railroad, 106 Mo. 482; Griffith v. Railroad, 98 Mo. 168; Moore v. Railroad, 85 Mo. 588; Fullerton v. Fordyce, 144 Mo. 519; Hanlon v. Railroad, 104 Mo. 381; Whalen v. Railroad, 60 Mo. 323.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff by a fall occasioned by the defective condition of one of defendant's sidewalks upon which she was walking at the time.

The suit was instituted in the circuit court of Jasper county, but the venue was subsequently changed to the circuit court of Vernon county, where upon a trial to the court and jury, plaintiff recovered a verdict and judgment for five thousand dollars.

After unsuccessful motion for a new trial and in arrest defendant appeals.

The plaintiff is a married woman and was at the time of the trial in December, 1896, thirty-four years of age, and the mother of six living children, and one dead. At the time of the accident she lived in Vernon county, but was visiting relatives who lived near defendant city. Prior to the accident she had always been a stout, healthy woman.

On the evening of November 12, 1894, she in company with her sister went to Webb City to do some shopping, and while they were walking west on Main street, one of the principal thoroughfares of said city, after dark, plaintiff's foot slipped in a hole in the sidewalk which was constructed of wood, causing her to fall heavily upon the walk, producing an impacted fracture of the right thigh bone, that is, a fracture of the neck of the thigh bone, by reason of which she was confined to her bed for over six months; suffered great pain always thereafter, the leg being shortened and the injury permanent.

The evidence tended to show that the hole in the sidewalk into which plaintiff stepped had been there for about six weeks prior to the accident.

At the close of plaintiff's evidence defendant interposed a demurrer thereto which was denied and it duly excepted.

At the close of all the evidence the court at the instance of plaintiff, over the objection of defendant, instructed the jury as follows:

"1st. The court instructs the jury that it is by law made the duty of defendant to keep its sidewalks upon its streets in a reasonably safe condition for the use of pedestrians using the same for travel; and if you shall believe from the evidence that the defendant city permitted its sidewalk on the street and at the place on said street mentioned in plaintiff's petition to become out of repair and in a dangerous condition for travel, and to so remain in a dangerous condition and out of repair after it knew, or by the exercise of reasonable care and caution could have ascertained the defective and dangerous condition of said sidewalk, and the plaintiff while passing along said sidewalk, at the place mentioned in plaintiff's petition, was on account of said defective and dangerous condition of said sidewalk, without fault or negligence on her part, injured thereby, your verdict should be for the plaintiff.

"2nd. The court instructs the jury that if from the evidence, they find for the plaintiff, then in estimating her damages they will take into consideration the physical injury inflicted, whether temporary or permanent, and the bodily pain and mental anguish endured, if any, by plaintiff, and in assessing her damages, you shall assess them at such sum as you shall believe from the evidence will reasonably compensate her for said injury received, together with the suffering caused by reason of said injury, and in a sum not to exceed twenty thousand dollars as asked for in plaintiff's petition."

And to the decision of the court in giving said instructions and each of them, defendant then and there at the time excepted.

The following instructions were given at the request of defendant:

"3. The court instructs the jury that before the duty is placed upon the defendant to keep the sidewalk in a reasonably safe condition, it devolves upon the plaintiff to show that said sidewalk was a part of a street that had been dedicated to the public by the owner of the land over which it passes and said dedication accepted by the city, but such acceptance need not be shown by any formal order of record, but may be shown by such other acts as may show that the defendant recognized and treated the same as one of its streets, or the plaintiff must show that said street has been used by the public for the space of ten years, continuously, under a claim of right that it was a public highway, and unless the plaintiff has so shown your verdict will be for the defendant.

"4. The court instructs the jury that if the defect in the sidewalk was obvious, and plaintiff by the exercise of reasonable care would have observed the same, and they further believe that there was sufficient width of said sidewalk for plaintiff and her sister to walk on and avoid said defect, then plaintiff can not recover.

"5. The court instructs the jury that if they believe from the evidence that...