Brake v. City

• Decision Date: 08 June 1903
• Citation: 75 S.W. 191,100 Mo.App. 611
• Parties: VINNIE F. BRAKE, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

75 S.W. 191

100 Mo.App. 611

VINNIE F. BRAKE, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1903

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

Reversed and remanded.

R. J Ingraham and L. E. Durham for appellant.

(1) Plaintiff's instruction numbered 3 does not properly direct the jury as to time allowed to city to repair walk. Badgley v. St. Louis, 149 Mo. 122; Baustian v Young, 152 Mo. 317. (2) Plaintiff's instructions numbered 5 and 8 are not confined to the pleadings and are otherwise prejudicial to defendant. Jacquin v. Cable Co., 57 Mo.App. 320; Pryor v. Railroad, 85 Mo.App. 378. (3) Plaintiff's instruction numbered 4 is erroneous for the following reasons. (a) It is not confined to the pleadings, and is a roving commission. Edwards v Railroad, 79 Mo.App. 257; Pryor v. Railroad, 85 Mo.App. 380; Slaughter v. Railroad, 116 Mo. 269; Jacquin v. Cable Co., 57 Mo.App. 320; Hawes v. Stock Yards Co., 103 Mo. 60. (b) It is not based on the evidence. Mammerberg v. Railroad, 62 Mo.App. 563; Rhodes v. City of Nevada, 47 Mo.App. 499; Slaughter v. Railroad, 116 Mo. 269; Evans v. City of Joplin, 76 Mo.App. 20; Smith v. Railroad, 108 Mo. 243; Bigelow v. Railroad, 48 Mo.App. 367. (c) It assumes as a fact that plaintiff's injury is permanent in nature, and assumes also that bodily pain and mental suffering were endured. Plummer v. City of Milan, 70 Mo.App. 598; Evans v. City of Joplin, 76 Mo.App. 20. (d) It directs the jury to find damages for future expense of treatment when there is nothing in evidence to show that husband will not return and claim same from defendant. Cullar v. Railroad, 84 Mo.App. 340; Plummer v. City of Milan, 70 Mo.App. 598.

Fred Griffith and Elmer E. Hairgrove for respondent.

Submitted an extended argument.

OPINION

BROADDUS, J.

The plaintiff's suit is for damages alleged to have been sustained by reason of the negligence of the defendant in constructing and maintaining an unsafe sidewalk on St. John avenue, one of defendant's streets. The plaintiff, a married woman living separate and apart from her husband, claims that at about 7 o'clock on the evening of the 23d of November, 1900, while she was lawfully using said sidewalk, in the exercise of due care, she fell to the ground by reason of the absence of light and by reason of the unsafe and dangerous condition of said walk, and was severely injured.

The evidence showed that the plaintiff, who was a stenographer and typewriter, and dependent wholly upon her own labor for support, while passing over the sidewalk in question, in company with her sister, fell off said walk into the street. The sidewalk was constructed of wooden stringers and plank, and at the point where plaintiff fell it was about two feet higher than the street. When she fell off the walk, plaintiff struck the ground and then fell into a gully still several feet lower than the surface of the street. There was no street light at the point in question and it was very dark--so dark, according to plaintiff's evidence, that she could not see the walk. The evidence was that plaintiff was careful and that the fall was not the result of negligence on her part.

The evidence further tended to show that plaintiff's injury is located in her womb and that she suffered greatly, still suffers, and that it is doubtful if she will ever entirely recover; and that while she is able to carry on her business as stenographer and typewriter, she suffers much if the work is prolonged; and that she is incapacitated from doing house work and is unable to sew. It was shown that plaintiff only lost about two days' service at her business, and there was no evidence as to the value of her time lost, or that of any prospective loss of time in the future. Dr. Pinckard, her attending physician, testified that her injury consisted of a retroversion of her womb, which he restored to its natural position, but that retroversion will probably recur if she continues her present occupation.

The defense was contributory negligence on part of plaintiff. It was shown that the walk was practically new, as it had been constructed only about two months, and that plaintiff passed over it daily and knew its condition and that of the street. The jury returned a verdict for plaintiff for $ 1,500.

Defendant contends that the court erred in giving certain instructions in behalf of plaintiff. Instruction number three is said to be subject to the objection that it did not properly direct the jury as to the time allowed the city to repair the defective sidewalk. It must be admitted that said instruction is somewhat faulty in that respect, but the error was of no consequence. The suit is founded not upon the negligence of the city in failing to repair its sidewalk, but for its negligent construction, in which case it was charged with notice from the beginning, and which it was under a continuing duty to repair. Barr v. City of Kansas, 105 Mo. 550, 16 S.W. 483; Haniford v. City of Kansas, 103 Mo. 172, 15 S.W. 753.

Instruction number four is objected to for the assigned reason that it was not confined to the pleadings and that it is in the nature of a roving commission to the jury to assess damages. It is as follows: "The court instructs the jury if it finds for the plaintiff, it will assess damages in favor of the plaintiff, in a sum not exceeding $ 3,000; and in fixing the amount of such damages it will take into consideration, any direct and necessary damages resulting from the injury, if any, and the jury will also consider the age of the plaintiff, her condition in life, the nature and extent of the physical injuries inflicted, if any, the bodily pain, and mental suffering endured, the loss of time and the expenses of the treatment of the injuries, if any, and any and all such damages, if any, which it appears from the evidence will reasonably result from such injuries in the future."

In Edwards v. Railroad, 79 Mo.App. 257, it was held as the petition neither directly nor inferentially pleaded loss of time and wages, an instruction that submitted to the jury the question as to plaintiff's damages arising from loss of time and wages was reversible error. Slaughter v Railroad, 116 Mo. 269; Mason v. Railroad, 75 Mo.App. 9. The petition in the case at bar does not in direct terms allege damages for loss of time, but it...