Brown v. City of St. Joseph

• Citation: 171 S.W. 935
• Decision Date: 23 November 1914
• Docket Number: No. 10850.,10850.
• Parties: BROWN v. CITY OF ST. JOSEPH.
• Court: Court of Appeal of Missouri (US)

171 S.W. 935

BROWN v. CITY OF ST. JOSEPH.

No. 10850.

Kansas City Court of Appeals. Missouri.

November 23, 1914.

Rehearing Denied December 21, 1914.

1. APPEAL AND ERROR (§ 1064) — HARMLESS ERROR — CLERICAL MISTAKE.

Where the petition alleged and the evidence showed that the plaintiff was injured on a crosswalk on the north side of the street which ran east and west, error in an instruction, stating that it was on the west side of that street, was merely clerical, and does not require a reversal.

2. TRIAL (§ 252) — REQUESTED INSTRUCTIONS — APPLICABILITY TO EVIDENCE — CONTRIBUTORY NEGLIGENCE.

Where plaintiff's evidence as to a fall on a sidewalk did not support an inference of contributory negligence, and the city offered no evidence on that issue, a requested instruction on contributory negligence was properly refused.

3. EVIDENCE (§ 558) — EXPERT WITNESS — CROSS-EXAMINATION — SCOPE.

In an action for injuries to plaintiff's knee, a question, asked on cross-examination of defendant's expert, whether the injury would likely subject the plaintiff to rheumatism, was not objectionable as an attempt to show that plaintiff had suffered rheumatism, which was not claimed by the petition.

4. APPEAL AND ERROR (§ 237) — PRESENTING QUESTIONS IN LOWER COURT — IRRELEVANT TESTIMONY — MOTION TO STRIKE.

Where plaintiff, in response to a proper question, stated that she did not go to a hospital because of the injury of which she complained, but went to have a tumor removed, and then voluntarily added that the injury made it necessary to remove the tumor sooner, that statement does not require a reversal where there was no objection thereto and no request to strike it from the record.

5. MUNICIPAL CORPORATIONS (§ 818) — TORTS — DEFECTIVE SIDEWALK — ADMISSIBILITY OF EVIDENCE.

In an action for personal injuries caused by a defective sidewalk, a contract for the grading of the street, which required the contractor to replace the walk in good order, is not admissible to show that the contractor should have been made a party under Rev. St. 1909, § 8862, where the grading had been finished several months before the accident and there was no evidence that the defect in the walk was due to the contractor's negligence.

6. DAMAGES (§ 132) — EXCESSIVE DAMAGES — INJURY TO KNEE.

An award of $1,500 damages for injuries to a woman's knee, which caused great pain and stiffness in the point, and would result in a permanent weakness and perhaps permanent stiffness, is not excessive.

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Eva L. Brown against the City of St. Joseph. Judgment for the plaintiff, and defendant appeals. Affirmed.

Frank B. Fulkerson, L. E. Thompson, and Herman Hess, all of St. Joseph, for appellant. John S. Boyer, of St. Joseph, and Charles C. Crow, of Kansas City, for respondent.

TRIMBLE, J.

Suit for personal injuries alleged to have been sustained by a fall caused by a defective crosswalk in one of the public streets of appellant city. Respondent was returning home from church between 9:30 and 10 o'clock in the evening of March 27, 1913. It was dark, and the street was not illuminated. Having alighted from a street car at the intersection of Thirty-Third and Seneca streets, respondent started west on the crosswalk over Thirty-Third street and on the north side of Seneca. This crosswalk was made of large boards laid lengthwise of the crossing and nailed to stringers thereunder. One of these boards had warped, and the nails in the east end of the board had pulled out of the stringer, allowing the board to cup up and raise the end of the board some six inches or more above the level of the walk, with the nails still remaining in the board and turned outward toward the east. It had remained in this condition for a month or six weeks prior to the night in question. Respondent's toe or foot caught under the upturned end of this board, and she was thrown heavily to the ground injuring her left leg and knee. Appellant offered no evidence to dispute the facts concerning the location of the crosswalk or the defect therein or respondent's fall thereon as a result thereof, nor any disputing the manner in which it occurred, or that an injury was in fact received.

The first complaint of error is that the petition did not count upon negligence of defendant in maintaining the crosswalk in a dangerous and unsafe condition. But a...