Caskey v. City of La Belle
| Decision Date | 14 April 1903 |
| Citation | 74 S.W. 113,101 Mo.App. 590 |
| Parties | ALTA R. CASKEY, Respondent, v. CITY OF LA BELLE, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lewis Circuit Court.--Hon. Edwin R. McKee, Judge.
Defendant the city of La Belle, is a city of the fourth class. The plaintiff was injured by a fall, alleged to have been caused by defects in a sidewalk on the east side of Pomeroy street opposite the mouth of Congress street in said city.
The answer was a general denial and a plea of contributory negligence.
Plaintiff received the injury on the morning of November 25, 1899, at which time she was eight years and four months old, by falling on the plank sidewalk on the east side of Pomeroy street, in said city, opposite the mouth of Congress street where it intersects Pomeroy street. The elbow joint of her right arm was fractured; the fracture healed, but left the joint stiff so that the arm has been of little use to her and the medical testimony is that the injury is incurable and permanent and there is little hope of any material improvement.
Congress street, which is sixty-six feet wide, enters into Pomeroy street on the west side. The evidence tends to show that the city expected, at some time in the future, to extend Congress street on over and east of Pomeroy and, presumably, with this intention in view laid, or caused to be laid on the east side of Pomeroy street opposite the mouth of Congress street the full width of the latter street, the sidewalk in question. The walk was constructed by laying two boards, twelve inches wide and two inches thick, lengthwise on blocks laid upon the ground for their support. The parallel boards were laid from four and one-half to five inches apart. In this space weeds and grass had grown up, but had been mowed off level with the surface of the walk, in the summer of 1899 prior to the injury. There were two drains or ditches near the south end of the two-board walk where it joined a four-foot board sidewalk properly laid. One of these drains was an artificial ditch from eight to ten inches deep and located from six to eight feet from the south end of the two-board walk. The ground was about level where the walk was laid, and it was nowhere elevated to exceed from four to five inches above the surface of the ground, and in some places it was very near or quite even with the surface. This walk had been laid three or four years prior to the injury and was in the same condition in November, 1899, as when laid, except the blocks of wood on which it was supported had partially sunk into the earth. Its condition was well known to the defendant's street commissioner, he having mowed the grass and weeds about it only a month or two before the injury, and must have been known to all the officers of the city as the evidence tends to prove that there was a great deal of traveling over this walk and that the street was a much-used thoroughfare.
The plaintiff lived with her parents in the northern part of the city, but had only been living in the city a few months. She was attending school at the time she received the injury. The school was south of where she lived and on Pomeroy street, and her route to the school was over this street. There were sidewalks on either side of the street. On the morning of her injury, with five or six other school girls, she was walking on the west side of the street towards the schoolhouse. When they arrived at Congress street she and some of the other girls went diagonally across Pomeroy street arriving on the two-plank sidewalk south of its center.
Plaintiff's testimony is that she was in the rear of the other girls, that when she arrived at the point where the twelve-inch drain ran under the walk, she stepped one foot into the opening between the boards and into the ditch, whereby she was caused to fall on the sidewalk on her face. Her arm was broken and she was otherwise bruised. The girls immediately in front of her heard her fall and went to her assistance and helped her up, took her on to the schoolhouse and from there she was escorted home and a physician called who dressed and treated the injury for several months, and until she with her family moved away.
Plaintiff testified that she was not running, not looking back behind her and was not talking to anyone behind her and that there was no one behind her; that there was no frost on the boards and that she had never noticed the drain or ditch under the walk, until after she was hurt.
On the part of defendant, the evidence tends to prove that there was frost on the walk; that plaintiff was skipping along sideways looking back talking to some girls behind her and slipped and fell; that there were no drains or ditches under the walk where she fell.
Grace Morton was a cousin of plaintiff, and was one of the girls who helped her up and helped her to the schoolhouse and from there to her home. Dulcie Mulinex, a witness for the defendant, testified that she saw the accident and that after Grace Morton and the plaintiff arrived at the schoolhouse, she heard Grace Morton say that plaintiff had weak ankles; that her ankles gave way and that was what caused her to fall; that plaintiff was present and heard this statement but said nothing.
Lucile Dowell, another witness for defendant, testified to the same statement, that plaintiff said nothing; that she was crying.
Plaintiff's counsel then moved that the evidence of this statement be stricken out. The motion was sustained, to which defendant's counsel objected and excepted.
Mrs. Caskey, plaintiff's mother, on cross-examination, was asked the following question:
The question was objected to by plaintiff. The objection was sustained and exception saved.
The verdict was for plaintiff, assessing her damages at six hundred and seventy-nine and seven-twelfths dollars. After an unsuccessful motion for new trial, defendant appealed.
Judgment affirmed.
Blair & Marchand, Dowell & Simpson and B. F. Thompson for appellant.
(1) The court erred in failing to examine the pleadings and in failing to state the issues in the case to the jury by proper instructions. This should have been done and had it been done and the place of injury described in the first and second counts of plaintiff's amended petition been specifically and definitely stated in the instructions, the jury could never have returned the verdict it did. McGinniss v. Railroad, 21 Mo.App. 399; Procter v. Loomis, 35 Mo.App. 482; Fleischmann v. Miller, 38 Mo.App. 177-81; Clark v. Loan Co., 46 Mo.App. 248; Shaw v. Dairy Co., 56 Mo.App. 521. (2) In the said first count of plaintiff's petition it is averred that plaintiff fell in a certain hole, crevice or crack in said sidewalk and into the ditch or trench thereunder, and that thereby her right arm was broken, fractured and permanently injured. The second count of said petition avers that she fell into a certain hole, crevice and crack in said sidewalk and that her right arm was broken, etc. Not a word is said in either count about the injury being occasioned by her foot slipping into the ditch or trench under said sidewalk, hence, the issue presented by the pleading is entirely ignored by the instruction and a new fact or issue presented to the jury not stated in the pleading. This should not have been done. Russell v. Railroad, 26 Mo.App. 368; McDonald v. Railroad, 32 Mo.App. 70; Gurley v. Railroad, 93 Mo. 445.
Clay & Johnson and Rieger & Rieger for respondent.
(1) The petition is sufficient; either count is good pleading. Walker v. Point Pleasant, 49 Mo.App. 244; Rusher v. City of Aurora, 71 Mo.App. 418. (2) Every point raised by appellants in their brief, as to the sufficiency of the petition, should have been raised by special demurrer or by motion to make more specific. Hurst v. City of Ash Grove, 96 Mo. 198. In regard to the second assignment of error by appellant, the question asked Chas. F. Smith, city clerk, is proper. Any order made by the defendant city requiring property owners to repair sidewalk on east side of Pomeroy street was competent evidence as showing city's knowledge of the condition of sidewalk. Rusher v. City of Aurora, 71 Mo.App. 418. (3) It is questionable whether plaintiff could be guilty of contributory negligence. Goins v. City of Moberly, 127 Mo. 116. (4) Defendant does not deny that plaintiff was injured on the sidewalk in question, but contends that the place she fell was only about eight feet from the south end of the two plank sidewalks. On defendant's own showing, defendant city is liable. This case should be affirmed with damages and we ask that the judgment of the trial court be affirmed with damages. Taylor v. Scott, 26 Mo.App. 249; Adder v. Long, 28 Mo.App. 440; Thomas v. Ins. Co., 47 Mo. 169.
--1. The answer alleged defendant was informed that plaintiff, on or about the date mentioned, got her right arm hurt or broken, but denied that the hurt was caused by the negligence of defendant, but that it was caused by her own negligence. Defendant offered no evidence whatever, that plaintiff's arm was not broken; this fact was not controverted on the trial, and it was wholly immaterial that her mother said to Glenn, if she did say it, that "It was two weeks after she was hurt before I found out the arm was...
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