51 S.W. 709 (Mo. 1899), Young v. The City of Webb City

Citation:51 S.W. 709, 150 Mo. 333
Opinion Judge:BURGESS, J.
Party Name:Young v. The City of Webb City, Appellant
Attorney:Frank L. Forlow for appellant. L. L. Scott, W. M. Bowker and G. S. Hoss for respondent.
Judge Panel:BURGESS, J. Gantt, P. J., and Sherwood, J., concur. Finding no reversible error in the record we affirm the judgment. Gantt, P. J., and Sherwood, J., concur.
Case Date:June 06, 1899
Court:Supreme Court of Missouri
 
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Page 709

51 S.W. 709 (Mo. 1899)

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...

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