Collier v. City of Shelbyville

• Decision Date: 02 March 1920
• Docket Number: No. 15563.,15563.
• Citation: 219 S.W. 713
• Parties: COLLIER v. CITY OF SHELBYVILLE.
• Court: Missouri Court of Appeals

219 S.W. 713

COLLIER v. CITY OF SHELBYVILLE.

No. 15563.

St. Louis Court of Appeals. Missouri.

March 2, 1920.

Appeal from Circuit Court, Shelby County; Nat. M. Shelton, Judge.

"Not to be officially published."

Action by Ruth Collier, a minor, by Nellie Collier, her next friend, against the City of Shelbyville. Verdict for plaintiff for $100, and from an order granting plaintiff a new trial, defendant appeals. Affirmed, and cause remanded.

E. M. O'Bryen and V. L. Drain, both of Shelbyville, for appellant.

John D. Dale, of Shelbyville, and John T. Gose, of Shelbina, for respondent.

BIGGS, C.

Plaintiff, a young girl aged 17 years, sues the city of Shelbyville, Mo., a city of the fourth class, alleging that on the 28th day of June, 1915, while walking on one of the public streets of said city, and while exercising due care on her part, she stepped upon a split and loose board of the sidewalk which gave way under her, tripping and throwing her down, wrenching and twisting her knee and leg and wrenching and twisting her back.

Defendant answered by general denial coupled with a plea of contributory negligence.

After a trial before a jury there was a verdict for the plaintiff for $100. The court nisi sustained plaintiff's motion for a new trial, but failed to specify the ground thereof, as required by the statute. From that order the defendant city perfected an appeal to this court.

In this state of the record the action of the court will be sustained if on any ground set forth in the motion it ought to have been sustained. Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440; Bank v. Wood, 124 Mo. 72, 27 S. W. 554; Lead & Zinc Mining Co. v. Webster, 193 Mo. 351, loc. cit. 363, 92 S. W. 79.

As this was the first trial of the case, the discretion of the trial court in sustaining the motion on a discretionary ground should not and will not be interfered with by us unless, upon the undisputed facts in the record, no verdict for the plaintiff would ever be allowed to stand or unless we thought there was an abuse of such discretion. Ottomeyer v. Pritchett, 178 Mo. 160, 77 S. W. 62; Warner v. Railroad, 178 Mo. 125, 77 S. W. 67; Herndon v. Lewis, 175 Mo. 116, 74 S. W. 976; Newell v. Boatmen's Bank (Sup.) 216 S. W. loc. cit. 921; Lead & Zinc Mining Co. v. Webster, supra.

The defendant city interposed a demurrer to the evidence, and now insists that the court erred in refusing to instruct the jury to find for the city, arguing that the accident was occasioned solely by the slippery condition of the sidewalk caused by a rain the night before.

We have examined the record, and have concluded that the evidence submitted by the plaintiff authorized the submission of the case to the jury. The main question at issue was whether the plaintiff's injuries were caused by the defective condition of the walk or whether she simply slipped upon the walk, which slippery condition was occasioned by the elements. There is abundant evidence in the record showing that this walk had been in a defective condition for a considerable length of time, sufficient to cause the city to be bound with knowledge of its defective condition. Plaintiff's evidence tended to prove that one of the boards in the walk at the place where she was injured was old and defective and had a loose splinter in one end of it which had been in that condition for a long period of time, and that this was the board upon which she stepped at the time of her injuries. The plaintiff testified that just as she put her foot down on the board it stink or sprung with her and she felt herself "going down."

There was considerable evidence on the part of the defendant to the effect that the accident was caused merely by the slippery condition of the board, due to the rain. However, this was an issue for the jury to decide.

Defendant's counsel further argue that there was an absolute variance between the allegations of the petition and the proof on the question as to the manner of the happening of the accident, and therefore its demurrer should have been sustained. But we think this point is without merit. Plaintiff does not allege in her petition, as contended by the city, that she tripped and fell, but alleges, as heretofore stated, that when she...