Elliott v. Kansas City

• Decision Date: 03 July 1906
• Citation: 198 Mo. 593,96 S.W. 1023
• Parties: ELLIOTT et al. v. KANSAS CITY.
• Court: Missouri Supreme Court

96 S.W. 1023

198 Mo. 593

ELLIOTT et al. v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

July 3, 1906.

Rehearing Denied October 17, 1906.

1. APPEAL AND ERROR—QUESTIONS PRESENTED BY RECORD—LOWER COURT'S DECISION— GROUNDS.

The record of a case, in which testimony of a physician as to plaintiff's condition was unsuccessfully offered by defendant during the third trial of the cause, showed an admission by the court that the witness testified to the same facts on the former trials, as preserved in the bill of exceptions, and that defendant's counsel told the court, without contradiction, that the testimony at the former trials was admitted without objection. Held to sufficiently preserve on appeal the question of a prior waiver by plaintiff of the privileged knowledge.

2. WITNESSES — CONFIDENTIAL RELATION — PHYSICIANS—WAIVER—FORMER TRIAL.

A plaintiff who makes no objection to the introduction by defendant of testimony of a physician as to facts obtained while professionally attending plaintiff cannot, on a subsequent trial of the same cause, object to the introduction of practically the same testimony.

3. MUNICIPAL CORPORATIONS — TORTS — DEFECTIVE SIDEWALKS — ACTIONS — INSTRUCTION.

An instruction to find for plaintiff in an action for injuries received by reason of a defective sidewalk if (inter alia) plaintiff "stepped into said hole, and was thereby thrown down and injured," is not defective as failing to require a finding that plaintiff was thrown down.

4. TRIAL—INSTRUCTIONS—ASSUMPTION AS TO FACTS.

An instruction in an action for injuries received by reason of a defective sidewalk, merely stating the care required of plaintiff, and following an instruction specifying the circumstances requisite to plaintiff's recovery, does not assume that plaintiff fell by reason of a reference to the "sidewalk on which she alleges she was walking when she fell."

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Mollie Elliott and another against Kansas City. From a judgment in favor of plaintiffs, defendant appeals. Reversed and remanded.

This cause is here upon appeal by the defendant from a judgment of the Lafayette county circuit court for the sum of $8,000. This is an action for $25,000 damages by respondent against the appellant for personal injuries alleged to have been sustained by her by reason of stepping into a hole in one of the sidewalks in said city. The defense was a general denial and contributory negligence. Two trials of this case were had in Kansas City at the first of which the jury disagreed and at the second plaintiff recovered a verdict of $500. The case was before Division No. 2 of the April term, 1903, of this court on writ of error taken by plaintiff, and the judgment was by this court reversed and remanded on account of an erroneous instruction given for defendant. Plaintiff took a change of venue, and a third trial of the case was had in Lafayette county, Mo. Plaintiff in her petition alleges that on the evening of the 27th of August, 1898, while walking upon a plank sidewalk of defendant, on the east side of Central street at a point about 25 feet north of Nineteenth street, she stepped into a hole in said sidewalk, skinning and bruising her right leg, wrenching her hip, injuring her back, causing a concussion of her spine and a severe nervous shock, which resulted in chronic neuritis so that her lower limbs were contracted and drawn out of shape, thereby permanently injuring her in the sum of $25,000. The plaintiffs are husband and wife. At the time of the accident she was about 28 years old. In August, 1898, they were living at 4020 Woodland avenue in Kansas City. On the morning of August 27, 1898, Mrs. Elliott left her home and went down town to the home of her sister, Mrs. O'Hare, who lived at the corner of Sixteenth street and Baltimore avenue. After lunch she went to the home of a friend, Mrs. G. J. Pierce, who lived at 311 West Twentieth street. About dusk she left the home of Mrs. Pierce to return to her sister's house. She walked east on Twentieth street to Central street and then turned north. Central street runs north and south and is intersected at right angles by numerically numbered streets, the lowest numbers being at the north end. Mrs. Elliott walked on the east side of Central street as she went north. There was a plank sidewalk on the east side of Central street between Eighteenth and Nineteenth streets which was built in 1890 under a city ordinance. This sidewalk consisted of wooden stringers about 12 feet long across which were nailed planks. At a point about 25 feet north of Nineteenth street a plank was missing out of the sidewalk and the dirt had washed out underneath the stringers at a place where two stringers met, causing the sidewalk to sag. Mrs. Elliott stepped into this hole with her right foot, which went down at least as far as her knee for her leg was skinned that far up. She got out of the hole and went on to her sister's house, a distance of three or four blocks. Here she got a package and went one block further on and took a street car for home. On the car pains came on in her leg and back so that when the car reached its terminus at Thirty-eighth street and Woodland avenue she could hardly walk to her home about two blocks distant. When she got home she went to bed. We deem it unnecessary in the determination of the legal propositions involved in this proceeding to detail all the testimony introduced by plaintiffs and defendant upon the trial. It is sufficient to say that there was testimony on both sides upon the issues presented by the pleadings. There was testimony on the part of the plaintiffs tending to show that her injuries were of a very severe and permanent character and were the result of the negligence of the defendant in not keeping its sidewalk in a reasonably safe condition. There was also testimony on the part of the plaintiff that the condition of this sidewalk had existed for some time prior to the accident. On the part of the defendant there was evidence tending to show that plaintiff's injuries were slight and not of a severe character and by no means permanent, and also evidence that her condition at the time of the trial and as testified to by the witnesses, was not the result of the accident but was the result of a diseased condition of the plaintiff Mollie Elliott which was in existence prior to the accident. The question of the admission and rejection of evidence during the progress of the trial, as well as the challenge of appellant to the correctness of instructions given by the court, will be given attention during the course of the opinion. As before stated, the nature and character of the testimony as to the nature and character of the injuries received, as well as the results of such injuries, and as to what occasioned them, is conflicting, and it can serve no good purpose to reproduce in detail all of such testimony. At the close of the testimony the court instructed the jury and the cause was submitted to them upon the evidence and instructions, and their verdict was in favor of the plaintiff, assessing plaintiff's damages in the sum of $8,000. Motions for new trial and in arrest of judgment were timely filed and by the court overruled, and judgment was rendered in accordance with the verdict. From this judgment the defendant, in due time and proper form prosecuted this appeal, and the record is now before us for consideration.

Edwin C. Meservey and W. H. H. Piatt, for appellant. L. A. Laughlin, for respondents.

FOX, J. (after stating the facts).

The record before us discloses the assignment of numerous errors as grounds for the reversal of the judgment in this cause. We will give the complaints of appellant such attention and consideration as the importance of them may suggest.

The most serious proposition with which we are confronted upon this appeal is the exclusion of the testimony of Dr. Joseph A. Horrigan, which was offered by the defendant upon the trial of this cause. There is a controversy between counsel upon the preliminary question as to whether or not the question of the exclusion of this testimony is properly preserved by the record so as to warrant this court in reviewing the action of the trial court upon that question. Therefore it is essential first to determine this preliminary question. Dr. Horrigan, upon the second trial of this cause in the Jackson county circuit court was introduced as a witness by the defendant and testified in such cause. That he did give testimony in the former trial there can be no dispute. The record in this cause shows that the trial court admitted that he had testified to substantially the same facts as was offered to be shown by the defendant in the two former trials, and the record of this court furnishes conclusive evidence that he did so testify; however, it is insisted by respondent that it does not sufficiently appear from the record of this cause that he testified in such former trial without objections on the part of the plaintiff so as to warrant the court in passing upon the question of waiver which is urged by appellant. To fully appreciate this question it is essential to reproduce precisely what the record shows upon this preliminary question. Dr. Horrigan was introduced as a witness upon this trial by the defendant and the following examination was made, which fully discloses the true state of the record: "Q. Where do you live? A. 3100 Main street, Kansas City, Mo. Q. Are you a practicing physician and surgeon in Kansas City? A. Yes, sir. Q. How long have you been practicing there? A. 16 years. Q. Have you practiced elsewhere? A. I was four years in the Columbian Hospital before I came to Kansas City. Q. At what colleges did you acquire your medical education? A. Columbian Hospital at Washington. Q. In 1893, doctor, in March, state whether or not you attended in your professional capacity the plaintiff in this...