77 S.W.2d 464 (Mo. 1934), Crockett v. City of Mexico

Citation77 S.W.2d 464, 336 Mo. 145
Opinion JudgeWESTHUES
Party NameJohn Crockett v. The City of Mexico and Wabash Railway Company, a Corporation, Appellants
AttorneyMahan, Mahan & Fuller, J. H. Whitecotton, A. C. Whitson and Homer Hall for Wabash Railway Company. W. W. Botts and Rodgers & Buffington for city of Mexico. Fry, Hollingsworth & Francis and Olliver W. Nolen for respondent.
Judge PanelWesthues, C. Cooley and Fitzsimmons CC., concur.
Case DateJune 19, 1934
CourtSupreme Court of Missouri

Page 464

77 S.W.2d 464 (Mo. 1934)

336 Mo. 145

John Crockett

v.

The City of Mexico and Wabash Railway Company, a Corporation, Appellants

Supreme Court of Missouri

June 19, 1934

Appellants' Motion for Rehearing Overruled December 1, 1934.

Appeal from Monroe Circuit Court; Hon. Chas. T. Hays, Judge; Opinion filed at May Term, 1934, June 19, 1934; motion for rehearing filed; motion overruled at September Term, December 1, 1934.

Affirmed.

Mahan, Mahan & Fuller, J. H. Whitecotton, A. C. Whitson and Homer Hall for Wabash Railway Company.

(1) The court erred in overruling defendant company's demurrer to the evidence for the reason that the defendant railway company was under no duty to keep the walk in repair and was not liable for it being out of repair. The courts of this State have so held in numerous cases. St. Louis v. Life Ins. Co., 107 Mo. 97; Baustain v. Young, 152 Mo. 317; Ford v. Kansas City, 181 Mo. 147; Russell v. Sincoe Realty Co., 293 Mo. 433; Breen v. Johnson Bros. Drug Co., 297 Mo. 185; Wright v. Hines, Dir. Genl., 235 S.W. 833; Smith v. Ry. Co., 275 S.W. 55; Callaway v. Newman Merc. Co., 321 Mo. 774; Stewart v. Sheidley, 223 Mo.App. 563; Shaw v. Ry. Co., 223 Mo.App. 1008, 9 S.W.2d 835. (2) The condition of the walk was open and obvious to a person exercising reasonable and ordinary care and would have been seen and avoided by plaintiff if he had exercised such care. He was, therefore, contributorily negligent and is not entitled to recover, even though the railway company was also negligent. For this reason the court erred in overruling the demurrer to the evidence requested by the defendant company. Hogan v. Ry. Co., 150 Mo. 55; Hanke v. St. Louis, 272 S.W. 937; Wheat v. St. Louis, 179 Mo. 581; Coffey v. Carthage, 186 Mo. 584; Ryan v. Kansas City, 232 Mo. 482; Woodson v. Street Ry. Co., 224 Mo. 700; Hebenheimer v. St. Louis, 269 Mo. 101; O'Neill v. St. Louis, 292 Mo. 665; Sloan v. American Press, 37 S.W.2d 888. (3) The court erred in permitting witnesses for plaintiff to testify over defendant's objections that they found evidence of a fracture. The petition did not allege there was such injury and the evidence was erroneous because it was broader than the petition. Hall v. Coal & Coke Co., 260 Mo. 372; Hibler v. K. C. Rys. Co., 292 Mo. 25, 237 S.W. 1017; Conner v. K. C. Rys. Co., 298 Mo. 23; Chawkley v. Ry. Co., 317 Mo. 806, 297 S.W. 20; Fink v. United Rys. Co. 219 S.W. 680; Provance v. Railroad Co., 186 S.W. 956. (4) The court erred in overruling this appellant's objection to the hypothetical question to plaintiff's medical witnesses because facts shown by the evidence were omitted, and in ruling that appellant could cross-examine the witness on those facts. Roscoe v. Street Ry. Co., 202 Mo. 595; De Maet v. Fidelity, etc., Co., 231 Mo. 620; Senn v. Ry. Co., 108 Mo. 142; Turner v. Haar, 114 Mo. 335; Smart v. Kansas City, 208 Mo. 162; Root v. Ry. Co., 195 Mo. 348; Cardinale v. Kemp, 274 S.W. 437; Castanie v. United Rys. Co., 249 Mo. 192; Deiner v. Sutermeister, 266 Mo. 521. (5) The court erred in excluding opinion testimony offered by defendants that the condition of plaintiff's back, as shown by the X-ray pictures, might have been caused by his previous injury. O'Leary v. Scullin Steel Co., 303 Mo. 382; Schulz v. Railroad Co., 319 Mo. 21; Morton v. Ry. Co., 323 Mo. 952; McPherson v. Premier Service Co., 38 S.W.2d 278. (6) The court erred in admitting testimony as to statements made to and by alleged representatives of the defendant company, relating to a walk on the west side of the crossing, without showing their identity and their authority to bind the defendant. Carp v. Ins. Co., 203 Mo. 334; Walkeen-Lewis Millinery Co. v. Johnston, 131 Mo.App. 699; Robinson v. Bush, 199 Mo.App. 190; Helm v. Ry. Co., 98 Mo.App. 425; Mathes v. Lumber Co., 173 Mo.App. 239; Spencer v. Ins. Co., 112 Mo.App. 89; Minea v. Cooperage Co., 179 Mo.App. 715; Griswold v. Haas, 145 Mo.App. 584. The court erred in admitting in evidence the X-ray photographs and opinion testimony based on the same because they were dim and indistinct and the opinion based upon them was mere conjecture upon conjecture. Schulz v. Ry. Co., 4 S.W.2d 762; Phillips v. Ins. Co., 231 S.W. 947; McAnany v. Henrici, 238 Mo. 103; Cardinale v. Kemp, 274 S.W. 437. (7) The court erred in admitting evidence of subsequent repairs of the walk and at a place other than the place alleged in the petition. Derrington v. Ry. Co., 40 S.W.2d 1072; Marshall v. Kansas City, 297 Mo. 317; Schloemer v. Transit Co., 204 Mo. 117; Boone v. St. Joseph, 1 S.W.2d 229; Schermer v. McMahon, 108 Mo.App. 38; Hipsley v. Railroad, 88 Mo. 354; Ely v. Ry. Co., 77 Mo. 36; Bailey v. Kansas City, 189 Mo. 512; Bujalo v. St. Louis Basket & Box Co., 227 S.W. 846; Alcorn v. Ry. Co., 108 Mo. 90; Landers v. Railroad Co., 134 Mo.App. 88; Clouts v. Gas Light Co., 160 Mo.App. 475; Mahaney v. Ry. Co., 108 Mo. 200. (8) The court erred in admitting the testimony of Mayor Lane that the witness Sanford had showed him the place where plaintiff fell. This was hearsay evidence of the worst kind and its admission is reversible error. Diel v. Ry. Co., 37 Mo.App. 458; Fesler v. Hunter, 35 S.W.2d 643; McKinney v. Lynch, 45 S.W.2d 875; Van Bibber v. Swift & Co., 286 Mo. 337; Landers v. Railroad Co., 134 Mo.App. 88. (9) The court erred in giving plaintiff's instructions 3, 4 and 5 for the reason that they authorized the jury to find for plaintiff for injuries mentioned in evidence which included fracture of vertebra, although such injury was not alleged in the petition. The instructions should not be broader than the pleadings, whatever the scope of the evidence. Krelitz v. Calcaterra, 33 S.W. 911; Degonia v. Ry. Co., 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 653; Kuhlman v. Water, Light & Transit Co., 307 Mo. 635; State ex rel. v. Allen, 313 Mo. 404; State ex rel. v. Daues, 314 Mo. 287; Talbert v. Ry. Co., 314 Mo. 370; Telanus v. Simpson, 321 Mo. 748, 12 S.W.2d 920; Gandy v. Ry. Co., 44 S.W.2d 638; Ely v. Railroad, 77 Mo. 36. (10) Plaintiff's counsel and the trial court, by their remarks and attitude, cast suspicion and doubt upon the testimony of defendant's witnesses and manifested to the jury such bias and partiality as to constitute reversible error. Rankin v. Gaugh, 6 S.W.2d 644; Courter v. Chase & Sons Merc. Co., 299 S.W. 626; Landers v. Railroad Co., 134 Mo.App. 89; Schmidt v. Railroad Co., 149 Mo. 283; State v. Turner, 125 Mo.App. 23; Dreyfus v. Railroad Co., 124 Mo.App. 594; Watson v. Aronberg, 15 S.W.2d 359; Wair v. Am. Car & Foundry Co., 285 S.W. 158; Robertson v. Ry. Co., 152 Mo. 382; Haynes v. Trenton, 108 Mo. 123. (11) The verdict is excessive and is not supported by sufficient evidence and is the result of prejudice and partiality on the part of the jury. Adams v. Ry. Co., 100 Mo. 569; Partello v. Ry. Co., 217 Mo. 661; Chlanda v. Transit Co., 213 Mo. 263; Gibney v. Transit Co., 204 Mo. 723; Brock v. Ry. Co., 305 Mo. 526; Kleinlein v. Foskin, 13 S.W.2d 659; Haynes v. Trenton, 108 Mo. 123.

W. W. Botts and Rodgers & Buffington for city of Mexico.

(1) There is no liability on the part of the city in this case, because: (a) There was no acceptance by the city of the railroad crossing in question as a public street of the city. Downend v. Kansas City, 156 Mo. 60; Baldwin v. Springfield, 141 Mo. 212; Ely v. St. Louis, 181 Mo. 729; Stealy v. Kansas City, 179 Mo. 400; Griffen v. Chillicothe, 279 S.W. 86. (b) Under the law no liability in any event could attach to the city until thirty days had elapsed after the defect complained of first existed. Secs. 4727, 8087, R. S. 1929. (2) Contributory negligence on the part of plaintiff bars his recovery as a matter of law. Ryan v. Kansas City, 232 Mo. 471; Sloan v. American Press Co., 37 S.W.2d 884; Woodson v. Met. St. Ry. Co., 224 Mo. 685. (3) Plaintiff's instructions 1, 2, and 4 are unsupported by the evidence and are erroneous. Champion Coated Paper Co. v. Shilkee, 237 S.W. 111. (4) The verdict resulted from bias and prejudice and is grossly excessive. De Courcey v. Construction Co., 140 Mo.App. 181; Mariott v. Railroad Co., 142 Mo.App. 199; Clifton v. Railroad Co., 232 Mo. 708; Wellborn v. Street Ry., 170 Mo.App. 357.

Fry, Hollingsworth & Francis and Olliver W. Nolen for respondent.

(1) Where, after a street has been dedicated to the public or lost to the owner by prescription, the city with or without formalities devotes a highway to the uses of the public by recognizing it as open for travel or invites the public to use it as a street, the city is liable to the same extent as for defects on any other public street. Callaway v. Newman Merc. Co., 12 S.W.2d 491; Curran v. St. Joseph, 264 Mo. 656, 175 S.W. 584; McMillan v. Clinton, 210 S.W. 918; Dummel v. Kansas City, 180 Mo.App. 339; Benton v. St. Louis, 217 Mo. 687; Stretch v. Lancaster, 206 S.W. 388; Phillips v. Pryor, 190 S.W. 1029; Meiners v. St. Louis, 130 Mo. 284; Mulik v. Jorganian, 37 S.W.2d 964...

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