Bragg v. City of Moberly

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PHILLIPS
• Citation: 17 Mo.App. 221
• Parties: PEORIA BRAGG AND HUSBAND, Respondents, v. THE CITY OF MOBERLY, Appellant.
• Decision Date: 30 March 1885

17 Mo.App. 221

PEORIA BRAGG AND HUSBAND, Respondents,
v.
THE CITY OF MOBERLY, Appellant.

Kansas City Court of Appeals, Missouri.

Mar. 30, 1885.

[17 Mo.App. 222]

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

The facts sufficiently appear in the opinion of the Court.

W. B. SANFORD for the appellant:

I. The court erred in admitting the testimony of plaintiff as to the prolapsus uteri; because it was only a matter of opinion on her part. It was a scientific question, on which the evidence of a medical or surgical expert only was admissible, and it was not shown that she was competent.--7 Mo. 530; 30 Mo. 160; Taylor on Evidence, vol. 2, sect. 1038; 1 Greenleaf on Evidence, sect. 440, 13th ed.; Sparr v. Welmon, 11 Mo. 230; Emerson v. Low Gas Light Co. 6 Allen (Mass.) 148; Folke v. Chadd, 3 Doug. 157; Best's Principles of Evidence, sect. 346; Carter v. Boehm, 1st Smith's Leading cases, 286.

II. The court erred in admitting the testimony of Dowdy, as to what she said of her sufferings or pain. This was hearsay.-- Chouteau v. Searcy, 8 Mo. 733; Fanny v. State, 6 Mo. 122; Wood v. Hicks, 36 Mo. 326; Langsdorf v. Field, 36 Mo. 440, and cases there cited.

III. The court erred in refusing a new trial after permitting incompetent testimony at the trial, because the evidence was a surprise and could not have been protected against by all diligence and precaution.-- Boyce's

[17 Mo.App. 223]

Trustees v. Merney et al., 40 Mo. 106; Savorie v. Brashear, 46 Mo. 346; Hite v. Lenheart, 7 Mo. 24.

O. T. ROUSE, for the respondents.

I. When motion for new trial is based on points addressed to the discretion of the trial court, the appellate court will not disturb its decision unless it acted arbitrarily.-- McDonough v. Nicholson, 46 Mo. 35; Eidemiller v. Kump, 61 Mo. 340; Griffin v. Veil, 56 Mo. 310; Judah v. Hogan, 67 Mo. 253. The common-law rule for new trial for surprise has been abrogated by section 3704, Revised Statutes. By this section the the question is addressed to the discretion of the trial court. The surprise urged is not such as the statute mentions.

II. No objection was made as to the competency of Mrs. Bragg's evidence at the trial. No objections are noted. Appellant failing to complain at the proper time, cannot now complain.-- Waddell v. Williams, 50 Mo. 219; Gambs v. Cor. Ins. Co., 50 Mo. 49; McDonough v. Nichols & Co., 46 Mo. 35; Wilson v. N. Mo. R. R. Co., 46 Mo. 36. If the trial suits the litigants, they cannot afterwards complain.-- Stone v. Lewis, 11 Mo. 439. The witness was not incompetent.

III. It was the duty of the city to keep the sidewalks in a reasonably safe condition to walk on, and it neglected its duty and was liable.-- Blake v. St. Louis, 64 Mo. 567; Brown v. Richmond, 75 Mo. 437; Russell v. Columbia, 74 Mo. 480; Oliver v. City of Kansas, 69 Mo. 79; Craig v. Sedalia, 63 Mo. 417; 15 Michigan 307.

Opinion by PHILLIPS, P. J.

This is an action to recover damages from the defendant--a municipal corporation--for injuries suffered by plaintiff, Peoria Bragg, in 1881. The plaintiffs are husband and wife. The injury was occasioned by a defective sidewalk on one of the streets of the city. The plaintiff seems to have been badly hurt, and on trial, had in Audrain circuit court, whither the case had been removed on change of venue from the Moberly common

[17 Mo.App. 224]

pleas court, the jury awarded the plaintiff damages in the sum of twenty-five hundred dollars, of which sum the plaintiffs remitted twelve hundred and fifty dollars.

The defendant seeks a reversal of said judgment on two grounds: First, because of the admission of incompetent evidence on the trial; and, second, because the court erred in refusing a new trial, because the defendant was surprised on the trial by the introduction of unexpected evidence by the plaintiff, which testimony, it is alleged, was false, and secured the amount of the verdict.

1. The plaintiff, Mrs. Bragg, in testifying to the character of her injuries, among other things, stated: “I had always been healthy before I got this fall. At the time I fell I was a little over nineteen years old. Before the fall I did my work. Since the fall I cannot do my washing, or lift anything of much weight. I could hardly work for a long time after the fall, and cannot ride horseback now, because of pain in one hip, of which I have suffered ever since the fall. I have constantly suffered with pain in the lower part of my back, bowels, and hips. Since the fall I have falling of the womb, and am now wearing a support for the womb, under the advice of my physician, Dr. Holt. He has been treating me since the fall. I have been afflicted as I now am ever since the...