Phelps v. City of Salisbury
| Citation | 61 S.W. 582,161 Mo. 1 |
| Parties | PHELPS v. CITY OF SALISBURY, Appellant |
| Decision Date | 12 March 1901 |
| Court | United States State Supreme Court of Missouri |
Appeal from Chariton Circuit Court. -- Hon. O. F. Smith, Special Judge.
Reversed and remanded.
C. C Hammond and Stockwell & Lamb for appellant.
(1) Instruction one given in behalf of respondent, does not truly declare the issues, and is erroneous and misleading. Young v. Ridenbaugh, 67 Mo. 574. It assumes to declare the issues that are presented to the jury. It declares that plaintiff seeks to recover damages for injury received on account of the dangerous condition of sidewalk and its crossing over the Wabash railroad, and in consequence of its failure to "maintain railings along the sides of said crossing, . . . . which it was the duty" of the said defendant city to construct and maintain in a reasonably safe condition for the travel of the public by day and by night. (2) Instructions 6 and 7 given for defendant, fairly present the issues and the law to the jury. Instruction 3 given in behalf of plaintiff, does not correctly declare the law, is not in harmony, and is inconsistent with instructions 6 and 7 aforesaid. Boynton v. Miller, 63 Mo. 207; Thomas v. Babb, 45 Mo. 384; Frank v Railroad, 57 Mo.App. 181; State to use v. Bank, 10 Mo.App. 482; Stone v. Hunt, 94 Mo. 475. Ordinary prudence and care without knowledge of danger will suffice; but ordinary care and prudence in the face of known danger is not sufficient. But if instruction 4 could be held correct, the error of giving an erroneous instruction is not cured by giving a correct instruction on the same point. Jones v. Talbot, 4 Mo. 279; Hickerson v. Griffen, 6 Mo. 37; Singer Mfg. Co. v. Hudson, 4 Mo.App. 145; State v. McNally, 87 Mo. 644; Sullivan v. Railroad, 88 Mo. 169; Billups v. Daggs, 38 Mo.App. 367; Fink & Nasse v. Algermissen, 25 Mo.App. 186. (3) Instruction 7 given for respondent is erroneous, in this, that the jury are therein told, among other things, that in estimating the damages they will take into consideration "his age and condition in life." There was no evidence offered as to the age of respondent, and the giving of said instruction was reversible error. The authorities are uniform in holding that an instruction should not be given if there is no evidence to support it; that no issue of fact should be submitted to the finding of a jury about which there is no proof. Culberson v. Railroad, 50 Mo.App. 556; Norton v. Railroad, 40 Mo.App. 642; Mammerburg v. Railroad, 62 Mo.App. 563; Duke v. Railroad, 99 Mo. 347; Slaughter v. Railroad, 116 Mo. 269; O'Brien v. Loomis, 43 Mo.App. 29; Rhodes v. City of Nevada, 47 Mo.App. 499; Wilkerson v. Eilies, 114 Mo. 245; Hinds v. City of Marshall, 22 Mo.App. 208; Gessley v. Railroad, 26 Mo.App. 156; White v. Chancy, 20 Mo.App. 389; Waddingham v. Hulett, 92 Mo. 528; Gorham v. Railroad, 113 Mo. 408; Harrison v. White, 56 Mo.App. 175; Moore v. Hawk, 57 Mo.App. 495. (4) A further objection to the instruction under review is, that the jury was instructed to take into consideration as an element in estimating the damages sustained by plaintiff, "his condition in life." In the language of the learned judge in the Hinds case, "what is meant by the words 'condition in life' is not apparent." These words can not refer "to the physical injuries inflicted," "the bodily pain and mental anguish endured," "the loss of time occasioned and all the expenses incurred in and about the treatment of the case," or, "to any, and all such damages which it appears from the evidence will reasonably result to him from said injuries in the future," for these are all enumerated as aggravations of the damages in addition to plaintiff's "age and condition in life." These words "condition in life" can not mean, or refer to, plaintiff's decreased ability, by reason of his injuries, to earn a livelihood, of which testimony was given, because such element of damage is fully covered by other parts of the instruction.
James C. Wallace and W. H. Bradley for respondent.
While there was no evidence as to the exact age of the respondent, yet there was positive evidence by Mrs. Jones and Mrs. Tudor, his two sisters, as to their ages at a fixed period, and that plaintiff was younger than they. Aided by this testimony, the jury could well nigh fix his age by the fact that he was personally present and testified. At least, these words, under the circumstances, could not have influenced the amount of the verdict, and the objection being exceedingly technical, should be ignored. Bertram v. Peoples Railway, 150 Mo. 639; State v. Thomspon, 155 Mo. 306. This court is required by statute not to reverse a judgment unless error has been committed materially affecting the merits of the action. R. S. 1899, sec. 865. Without these words in this instruction the verdict would have been the same. The damages were surely placed very low considering the extent of his injuries. Thomas v. Railroad, 20 Mo.App. 485; Yocum v. Town of Trenton, 20 Mo.App. 489; Bigelow v. Street Railway, 48 Mo.App. 368.
This is an action against defendant city to recover damages for personal injuries sustained by plaintiff while walking along and upon one of its sidewalks.
It is predicated upon defendant's alleged negligence in carelessly and negligently constructing that part of the sidewalk where the same is crossed by the Salisbury & Glasgow branch of the Wabash railroad, in this, that it failed to erect and maintain guards or railings on and along the sides of the same where it passes down an embankment and over a ditch of the depth of four feet, on the side of said branch railroad. And that by reason of the negligence and carelessness of defendant to properly construct and keep in safe and good condition the sidewalk and railroad crossing and suffering them to get out of repair and to become dangerous and unsafe for public travel, by failing to keep the plank of which said sidewalk and railroad crossing were built securely nailed to its foundation timbers, but allowed the same to become loose and insecure so that the ends thereof would stand above and below the common level of the walk, and carelessly and negligently allowed the nails with which said plank were fastened to work out and up so that they stood above the surface of the walk, thus rendering the same unsafe for public use and travel for a long time before the accident, and that by reason thereof, plaintiff, on or about the fourteenth day of October, 1894, while passing over that part of said sidewalk, and while using care and caution, caught his foot against the end of one of the loose planks of said walk, and against one of the spikes or nails, which had partly drawn out of the same, and was by reason thereof thrown down, causing a dislocation of his left knee, resulting in the necessary amputation of that leg, etc.
The answer is first a general denial. It then alleges that the sidewalk where the accident occurred was at that time, and for a long time previous thereto, in a reasonably good and safe condition; that plaintiff was familiar with it, was accustomed to pass over and upon it daily and knew its condition, and that he so carelessly and negligently passed over and upon said sidewalk that he slipped thereon and fell, which was the result of his own carelessness and negligence, and that the extent of plaintiff's injury and the amputation of his limb were occasioned by his physical condition prior to receiving the injury, and to his own subsequent carelessness and negligent conduct.
The salient facts are about as follows:
At the time of the accident, and for about four years prior thereto, the plaintiff was and had been a citizen of defendant city, and while returning home from church about eight o'clock on the evening of the fourteenth of October, 1894, and without fault or negligence upon his part, he struck his right foot against the end of a board of the sidewalk of said crossing of which it was composed, where the sidewalk and crossing connected, and slipped, and was precipitated into a ditch under the crossing, and his left leg so badly injured that amputation was a necessary result.
At the point where the injury occurred, the ends of the sidewalk plank where they had been nailed, had become loose, and the walk in consequence thereof had settled down, and was at the time an inch and one-half lower than the ends of the plank in the crossing. The sidewalk had been in this condition some two or three months, and plaintiff testified that he had about that time called the mayor of the city's attention to it, as well also as one of the councilmen. The evening upon which the accident occurred was dark, but there was an electric light near the point of the accident, but an arm of the lamp shaded the place. Plaintiff's injuries were serious and are permanent.
At the instance of plaintiff, and over the objection and exception of defendant the court instructed the jury as follows:
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