Baustian v. Young

• Decision Date: 14 November 1899
• Citation: 53 S.W. 921,152 Mo. 317
• Parties: BAUSTIAN v. YOUNG et al.
• Court: Missouri Supreme Court

53 S.W. 921

152 Mo. 317

BAUSTIAN v. YOUNG et al.

Supreme Court of Missouri, Division No. 1.

November 14, 1899.

NEGLIGENCE — INSTRUCTIONS — EVIDENCE — PHOTOGRAPHS — DEFECTIVE SIDEWALK — PERSONAL INJURIES — MUNICIPAL CORPORATIONS.

1. An instruction, the first clause of which indicates that photographs which were introduced were to be considered as evidence of the general surroundings of the place of an accident, and the second of which directed the jury not to consider them as evidence at all of the accident, or as to the cause thereof, does not properly inform the jury of the legitimate use they might make of such photographs, and is error.

2. A photograph is not admissible in evidence until it is proven by testimony aliunde to be a true photographic print of the thing in question.

3. An owner is under no duty to the public to keep the sidewalk in front of his premises in repair, and is not liable for failure to do so.

4. In an action for injuries resulting from defective sidewalk, plaintiff testified to a decayed condition of the wood, and a washing out of the ground underneath; that the hollow caused by the washing out permitted the plank to yield under plaintiff's weight, and was the real cause of the accident; that plaintiff had passed along the road frequently about the time, but not over the sidewalk, and had never observed any such condition. Five witnesses for defendant testified to having used the sidewalk daily several times, and never observed it. Held, that the evidence fails to show any knowledge on the part of the city, or any circumstances from which notice could be implied.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by George Baustian against Alexander Young and the city of St. Louis. Judgment for defendants, and from an order granting a new trial defendants appeal. Reversed.

The suit is for damages for personal injuries which plaintiff avers he sustained in consequence of a defective sidewalk. There was but one witness who testified as to the accident and its cause, which was the plaintiff himself. The only other witness for plaintiff was a physician, who spoke of the nature of the injury. According to the plaintiff's testimony, he was walking on a plank sidewalk on Morganford road, which is an unimproved street in the outskirts of the city, when he stepped on the end of a plank, which yielded to his weight, and caused him to fall, striking his shoulder against a telegraph pole, which caused the injury complained of. Morganford road, at the point in question, was like a country road, — no curbing or guttering, — and this wooden sidewalk was like what is seen in a country town. Whether it was put down by the city or the neighbors he did not know. After he got up, he examined the place, and saw that the ground underneath the sidewalk had washed out, the sleepers were rotten, and the nails hanging down. The hollow in the ground was what caused the plank to go down. It was rotten, but would not have given away but for the hollow in the ground under it. Plaintiff was a carpenter, and was employed in that vicinity. During the period of this employment, he had passed along Morganford road at this point about a dozen times, but had always before walked in the road, not on the sidewalk. Four days after the accident plaintiff took a photographer to the scene, and caused two photographs to be taken, showing the sidewalk at that point and the surroundings. These photographs were admitted in evidence over the defendants' objection. This, with the physician's testimony as to the nature of the injury, was all the evidence on the part of plaintiff. Defendants produced five witnesses, who testified that they habitually passed over that sidewalk several times daily, and never noticed any defect in it. This was all the evidence. At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant city asked an instruction in the nature of a demurrer to the evidence, which was each time refused, and exception taken. A number of instructions were given at the instance of the parties, respectively, about which no question is raised. But the court, of its own motion, gave the following: "The court instructs the jury that the photographs shown to the jury are only to be considered by the jury as evidence of the general surroundings of the place where the accident occurred; and are to be given only such weight, as such evidence, as the jury believe, from all the facts and circumstances in evidence, it is fairly entitled to. In no event are the photographs, or either of them, to be considered by the jury as any evidence at all of the accident, or as to the cause thereof, or as to what parties are responsible for the condition of the sidewalk, or as to whether any person is responsible for the condition of the sidewalk or for the accident." There was a verdict for defendants, which, on motion of plaintiff, was set aside, and a new trial granted, on the sole ground that the court erred in giving the instruction above quoted. From that order defendants appeal.

B. Schnurmacher and Chas. C. Allen, for appellants. James L. Hopkins, for respondent.

VALLIANT, J. (after stating the facts).

1. The objection to the instruction insisted on by the respondent is that, while in the first clause it indicates that the photographs are to be considered as evidence of the general surroundings of the place where the accident occurred, yet in the second clause the jury are directed not to consider them as evidence at all relating to the cause of the accident. The photographs, in connection with the testimony of the witness, purport to show a defect in the sidewalk which, according to the plaintiff's testimony, was the cause of the accident. If, then, the photographs are not to be considered as bearing on that point, they are not in evidence at all. A photograph taken, as these were, several days after the occurrence, has not precisely the same influence or weight as evidence as one taken in the moment of the act it purports to portray. It is not admissible in evidence at all until it is...