71 S.W. 106 (Mo.App. 1902), Johnson v. City of St. Joseph
|Citation:||71 S.W. 106, 96 Mo.App. 663|
|Opinion Judge:||BROADDUS, J.|
|Party Name:||JACOBINE JOHNSON, Respondent, v. CITY OF ST. JOSEPH, Appellant|
|Attorney:||Kendall B. Randolph for appellant. J. A. Connett and J. F. Woodson for respondent.|
|Case Date:||December 01, 1902|
|Court:||Court of Appeals of Missouri|
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
(1) The court erred in permitting the witness, Poteet, to testify as to the amount of voluntary travel over the road, termed by the pleadings Thirty-second street. Downend v. Kansas City, 156 Mo. 60; Carle v. DeSoto, 156 Mo. 443. (2) The court erred in admitting in evidence, over the objections of the defendant, special ordinance, number 512, showing the approval of the plat on the Oak Hill addition and also committed a like error in admitting in evidence the plat of both Mason Place and Oak Hill, and also committed error in admitting, over the objections of the defendant, permit number 7729, authorizing the setting of telephone poles, and also permit number 7284, permitting a plumber to open Lafayette street for the purpose of making a water connection, and also erred in admitting in evidence special ordinance number 2655, directing the water company to lay a main and street fire-hydrants. None of this evidence was competent to show acceptance of the street by the city, and all of it is governed by the same rule. Downend v. Kansas City, supra; Carle v. DeSoto, supra; Moore v. Cape Girardeau, 103 Mo. 470; Hunter v. Weston, 111 Mo. 176. (3) The court erred in overruling the demurrer to the evidence offered by the defendant city at the close of the plaintiff's evidence, and also after all of the evidence was in. There was no evidence whatever that Thirty-second street was a street of the city or had been accepted or adopted as such, and neither was there any evidence whatever that the street was in a dangerous condition. See authorities cited, supra. (4) The plaintiff's fourth instruction is erroneous because it tells the jury that if plaintiff was using such care as might be reasonably expected from an ordinarily prudent person at the time and under the circumstances then surrounding the plaintiff, then the jury must find that she was exercising reasonable care at said time. The correct rule is that the person must use such care as is ordinarily used by ordinarily prudent persons. Cohn v. Kansas City, 108 Mo. 392. (5) The fifth instruction given for plaintiff is not the law. The driver of the wagon was the plaintiff's son. She had put herself in the wagon under his charge, had agreed to go with him and to be driven by him, and his negligence is to be imputed to her. Hicks v. Railway, 124 Mo. 115.
(1) The evidence in regard to the extent of the public travel over the street on which the injury occurred was properly admitted by the court as tending to show a recognition of the street by the city. The cases cited by appellant do not sustain his statement that such evidence was not admissible. Downend v. Kansas City, 156 Mo. 60. This is the settled rule in Missouri. There is nothing in the authorities cited by appellant militating against this position. (2) Appellant's demurrers were properly overruled. Baldwin v. Springfield, 141 Mo. 205; Downend v. Kansas City, supra; Maus v. City, supra; Meiners v. St. Louis, 130 Mo. 284. (3) Plaintiff's fourth instruction properly defined the...
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