Barnes v. City of St. Joseph
| Decision Date | 05 December 1910 |
| Citation | 132 S.W. 318,151 Mo.App. 523 |
| Parties | LOUISA BARNES, Respondent, v. CITY OF ST. JOSEPH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.
Judgment affirmed.
W. B Norris, O. E. Shultz and Phil. A. Slattery for appellant.
(1) Plaintiff's instruction No. 1 is erroneous for the following reasons: It declared as a matter of law that the defect complained of was not reasonably safe. Garber v Kansas City, 105 Mo.App. 195; Jackson v. Kansas City, 106 Mo. 57. It contradicts defendant's instruction No. 3 in that plaintiff's instruction declared as a matter of law that the defect was not reasonably safe, while defendant's instruction required the jury to determine whether the defect was reasonably safe. Baker et al. v. Railroad, 122 Mo. 550; Thummel v. Dukes, 82 Mo.App. 55; Stone v. Hunt, 94 Mo 480; Thomas v. Babb, 45 Mo. 388; Bindebeutal v. Railroad, 43 Mo.App. 474. (2) The decision of the Court of Appeals in the former appeal of this case is not res adjudicata as to plaintiff's instruction 1. Barnes v. v. St. Joseph, 139 Mo.App. 545; Guinn v. Wagner, 116 Mo. 143; Baker v. Railroad, 147 Mo. 150; Ables v. Ackley, 133 Mo.App. 600; Rickwood v. Martin, 43 Mo.App. 597, 604; R. S. 1899, sec. 800. (3) The statements and conduct of plaintiff's counsel in his argument to the jury were prejudicial. Barnes v. St. Joseph, 139 Mo.App. 545; Norton v. Railroad, 40 Mo.App. 642; McDonald & Co. v. Cash and Hainds, 45 Mo.App. 66; Haynes v. Town of Trenton, 108 Mo. 123; Ritter v. Bank, 87 Mo. 574; Marble v. Walters, 19 Mo.App. 134; Gibson v. Ziebig, 24 Mo.App. 65. (4) The physician who testified on behalf of plaintiff, willfully misrepresented the physical condition of the plaintiff, as the result of the fall complained of, and the defendant is entitled to a new trial because the minds of the jury were prejudiced by reason of such statement. (5) Defendant is entitled to a new trial for the reason that the verdict of the jury was excessive and the result of passion and prejudice. Empey v. Cable Co., 45 Mo.App. 422; Sawyer et al. v. Railroad, 37 Mo. 240; Devoy v. Transit Co., 192 Mo. 197; Taylor v. Railroad, 185 Mo. 239.
Charles C. Crow for respondent.
(1) We must confess that the trial court would have erred had it given respondent's instruction number one alone, but in view of plaintiff's instruction number two, and defendant's instructions numbers 2, 3, 5, 6, 7, 9 and 11, the error in plaintiff's instruction number one was cured. It will be noted in reading defendant's instructions referred to above, that the omission in plaintiff's instruction number one is put to the jury in every conceivable form and as strongly as the English language can state it, so that the jury could not have been mislead by the omission in plaintiff's instruction number one. Austin v. Transit Co., 115 Mo.App. 146; King v. King, 155 Mo. 406; Asbill v. City of Joplin, 124 S.W. 22; Reding v. Reding, 127 S.W. 936; Deschner v. Railroad, 200 Mo. 310; Rogers v. Transit Co., 117 Mo.App. 678; Blackwell v. Hill, 76 Mo.App. 46; Johnson v. Railroad, 130 S.W. 413. (2) Even if the court in a proper case would hold that plaintiff's instruction number one was erroneous and that the instructions given by the court did not cure the error or supply the omission therein, the case will not be reversed unless the error complained of injuriously affected appellant's rights, or in other words, was prejudicial to appellant's rights and in this case if the instruction stood alone, this court would not reverse for the omission therein, for the reason that a very large number of witnesses called by plaintiff, testified to the condition of the sidewalk or alley-way, and the facts testified to by all the witnesses were not contradicted or disputed by a single witness called on behalf of appellant, or by any witness called by respondent, and the evidence, being all one way, and instruction number one going solely to the question as to whether or not the finding should be for the plaintiff or defendant, the omission in the instruction could not be reversible error because the jury could not have rendered a verdict for the defendant in the case. This instruction effected the question as to whether or not the finding should be for plaintiff or defendant, and did not in any way effect the amount to be awarded plaintiff. R. S. 1899, sec. 865; Lower v. Coal Co., 126 S.W. 987; King v. King, 155 Mo. 421; Burnes v. City, 131 Mo. 378; Barclay v. Cemetery Association, 153 Mo. 300.
This action to recover damages for personal injuries was before us on a former appeal of defendant (139 Mo.App. 545) and was reversed and remanded on account of improper remarks of counsel for plaintiff in his argument to the jury. Another trial to a jury resulted in a verdict and judgment for plaintiff in the sum of four thousand dollars. Defendant appealed and again complains of improper remarks in the argument of opposing counsel. Without repeating the remarks, we hold that while they go to the utmost limit of propriety, they manage to fall within the rules of forensic debate as defined in our former opinion. The present record discloses the same facts as stated and considered before and some additional facts to which we shall presently refer.
The first contention of defendant is that the court erred in giving the following instruction at the request of plaintiff:
"The court instructs the jury in this case that if you believe from the evidence that Highly street, mentioned in the evidence is a public thoroughfare of the city of St. Joseph and that on the 19th day of October, 1908, there was a hole or excavation on the north side of said street and in an alley-way intersecting with Highly street from the north and that said hole or excavation was in line with the sidewalk on the north side of Highly street and you further believe from the evidence that the city of St. Joseph knew of the existence of said hole or excavation a sufficient length of time to have repaired same prior to the 19th day of October 1908, and failed to do so, and if you further believe from the evidence in this case that while in the exercise of ordinary care on her part, plaintiff in this case was walking along the sidewalk on the north side of Highly street at the place mentioned in evidence and that it was in the nighttime and that plaintiff could not see said hole or excavation and that plaintiff stepped into said hole or excavation and was thereby caused to fall and thereby injured, then your verdict in this case will be for plaintiff, provided you further find from the evidence that plaintiff delivered to the mayor of the city of St. Joseph a notice of the fact that she had been injured on the north side of Highly street at said alley between Eleventh and Twelfth streets in said city, giving the date and place of injury in said notice, the description, location, situation and condition of the street at said...
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