Brown v. City of St. Joseph
| Decision Date | 23 November 1914 |
| Parties | EVA L. BROWN, Respondent, v. CITY OF ST. JOSEPH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
Judgment affirmed.
Frank B. Fulkerson, L. E. Thompson and Herman Hess for appellant.
John S Boyer and Charles C. Crow for respondent.
--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 reading of the entire petition, without confining one's self to a preliminary paragraph thereof, will disclose that this contention is without merit. Point is also made that respondent's instruction number 1, which submitted the case referred to the place of the accident as the crosswalk "at the intersection of Thirty-third and Seneca streets in said city and on the west side of Seneca street in Thirty-third street" when the petition alleged, and the evidence showed, that it was on the north side of Seneca street. There was but one crosswalk shown in evidence and that was the one where the fall occurred. Thirty-third street runs north and south intersecting Seneca which runs east and west. Therefore, there could be no west side of Seneca street. Hence, the error in the instruction in referring to the crosswalk as being on the west side instead of the north side of Seneca street was merely clerical and could deceive or mislead no one. The context showed that the place referred to was the crosswalk located as specified in the petition and evidence. Such an error is no ground for reversal. [Drimmel v. Kansas City, 180 Mo.App. 339, 168 S.W. 280.]
Appellant next says the court erred in refusing its instruction on contributory negligence. This instruction however, was properly refused, since there was no evidence whatever tending to show contributory negligence. Appellant offered no evidence concerning the happening of the fall, and no proof nor inference of contributory negligence appeared in respondent's evidence.
On the cross-examination of defendant's medical expert respondent's counsel was trying to get the expert to admit that the injured knee was likely to remain in a weakened state and hence constitute a permanent injury. In the course of this cross-examination the question was asked whether or not such an injury would likely subject the person to rheumatism. Appellant objected and now claims this was error because the petition did not allege rheumatism. But the question was not in reference to rheumatism suffered by respondent. No attempt...
To continue reading
Request your trial