Cordray v. City of Brookfield, 30797.

• Court: United States State Supreme Court of Missouri
• Citation: 65 S.W.2d 938
• Docket Number: No. 30797.,30797.
• Parties: L.F. CORDRAY v. CITY OF BROOKFIELD, Appellant.
• Decision Date: 06 December 1933

65 S.W.2d 938

L.F. CORDRAY v. CITY OF BROOKFIELD, Appellant.

No. 30797.

Supreme Court of Missouri.

Division One, December 6, 1933.

Appeal from Sullivan Circuit Court. — Hon. Paul Van Osdol, Judge.

REVERSED AND REMANDED.

A.L. Burns, H.K. West and Thomas P. Burns for appellant.

The court erred in giving Instruction 5 for the plaintiff because it authorized the jury to give any amount for doctor bills and medicines, regardless of the pleadings or the evidence, up to $30,000. Brake v. Kansas City, 100 Mo. App. 615; Stoetzle v. Sweringen, 96 Mo. App. 594; York v. Everton, 121 Mo. App. 645; Mammerberg v. Street Ry. Co., 62 Mo. App. 568; Laycock v. United Rys., 227 S.W. 889; Davis v. Davis, 235 S.W. 184; Tyon v. Wabash Ry. Co., 232 S.W. 792; Markley v. Kansas City, 286 S.W. 130; Shinn v. Railroad, 146 Mo. App. 740; Robinson v. C., R.I. & P. Ry. Co., 288 S.W. 114; Culberson v. C., M. & St. P. Ry. Co., 50 Mo. App. 563; Hunter v. City of Mexico, 49 Mo. App. 19; Muth v. St. Louis & Meramee River Ry. Co., 87 Mo. App. 438; Gibler v. Terminal Railroad Assn., 203 Mo. 210; Smith v. C. & A. Ry. Co., 108 Mo. 251; Nelson v. Railroad, 113 Mo. App. 665; Heidbrink v. United Rys. Co., 133 Mo. App. 43; Waldopfel v. St. Louis Transit Co., 102 Mo. App. 529; Evans v. Joplin, 76 Mo. App. 23; Heniz v. Rys. Co., 143 Mo. App. 42; Reagen v. Peoples Motor Bus Co., 35 S.W. (2d) 947; Lucas v. United Rys. Co., 154 Mo. App. 20; Field v. Ry. Co., 156 Mo. App. 651. The court should have given defendant's Instruction B, telling the jury that the city was not an insurer of plaintiff. Burnes v. St. Joseph, 91 Mo. App. 489; Morgan v. Kirksville, 181 Mo. App. 348; Starkey v. City of Greenville, 189 Mo. App. 352; Francis v. Westplains, 203 Mo. App. 249; Jackson v. Kansas City, 181 Mo. App. 181. The court should have discharged the jury when the plaintiff's counsel made prejudicial remarks in his argument not supported by any evidence. Chawkley v. Wabash Ry. Co., 297 S.W. 20; Mahner v. Linck, 70 Mo. App. 380; Rooker v. Ry. Co., 247 S.W. 1016; Evans v. Town of Trenton, 112 Mo. 390; Railroad Co. v. Moore, 243 U.S. 311; Jackman v. Ry. Co., 206 S.W. 244; Neff v. City of Cameron, 213 Mo. 350; Fathman v. Tumilty, 34 Mo. App. 236. The court erred in overruling defendant's demurrer at the close of plaintiff's case. Wheat v. St. Louis, 179 Mo. 572; Cohn v. Kansas City, 108 Mo. 393; Ray v. Poplar Bluff, 70 Mo. App. 260; Sindlinger v. Kansas City, 126 Mo. 315; Kairns v. St. Louis, 185 Mo. 374; Welsh v. McGowan, 172 S.W. 18; Rogers v. Tegarden Mfg Co., 170 S.W. 675; Harris v. Railroad, 250 Mo. 567; Jacksonville v. Bell, 53 A.L.R. 164; Reed v. Neward, 5 Pa. 316, 62 Atl. 792; Swart v. District of Columbia, 17 App. D.C. 407; Hoover v. Mapleton, 110 Iowa, 571, 81 N.W. 776; 13 R.C.L. 478; 28 Cyc. 1428. The court should have sustained the motion for a new trial. The verdict for $10,000 was a signal that the riot of errors committed in the case had led the jury away from the path of reason. Lebrecht v. United Rys. Co., 237 S.W. 112; Schupback v. Meshevsky, 300 S.W. 465; Aaron v. Met. St. Ry. Co., 159 Mo. App. 307; O'Gara v. St. Louis Transit Co., 204 Mo. 724; Chambers v. Hines, 233 S.W. 949.

Lon R. Owen for respondent.

(1) Instruction 5, given on the part of respondent, complained of by appellant, authorized the jury to compensate respondent as the jury may believe from the evidence will fairly and reasonably compensate him for any physical injuries inflicted and for any doctor bills and medicine, if any, he has expended or become obligated for, because of said injury. This instruction not only stated, as from the evidence, but any reasonable sum, and is sustained by the following authorities: Pelter v. St. Louis, 141 S.W. 608; Oliver v. City of Vandalia, 28 S.W. (2d) 1044; Kingsbury v. Schrader, 20 S.W. (2d) 537; Lerbs v. Machetascheck, 49 S.W. (2d) 240; Northcutt v. St. Louis Pub. Serv. Co., 48 S.W. 89. (2) The following cases sustain the court that the question of contributory negligence was a question for the jury. Mitchell v. Ry. Co., 132 Mo. App. 143; Owens v. Ry. Co., 58 Mo. 386; Mauermann v. Siemerts, 71 Mo. 101; Kinney v. Springfield, 35 Mo. App. 97; Thornsberry v. Ry. Co., 178 S.W. 197; Sharp v. Carthage, 5 S.W. (2d) 6; Farris v. Ry. Co., 80 Mo. 325; Kidd v. Ry. Co., 274 S.W. 1079; Marshall v. United Rys. Co., 184 S.W. 159; Schneider v. St. Joseph Ry. L. & P. Co., 238 S.W. 468; Struckle v. Busch Suizer Bros. Diesel Engine Co., 300 S.W. 993; Maus v. Springfield, 101 Mo. 613; Gerdes v. Christopher & Simpson Architectural Iron & Foundry Co., 27 S.W. 615; Chilton v. St. Joseph, 44 S.W. 766; Bradley v. City of Spickardsville, 90 Mo. App. 460; Pierette v. Kansas City, 62 S.W. 248; Huff v. Marshall, 71 S.W. 477; Chase v. Ry. Co., 114 S.W. 1141; Scanlon v. Kansas City, 19 S.W. (2d) 522; Wykoff v. City of Cameron, 9 S.W. (2d) 872; Kiefer v. St. Joseph, 229 S.W. 1089. (3) The court did not commit error because of refusing to discharge the jury or reprimand counsel for respondent and is sustained in his ruling by the following authorities: Crocker v. Kansas City Rys., 243 S.W. 902; Brinkman v. Gottenstroeder, 140 S.W. 1194; Bishop v. Musick Plating Works, 3 S.W. (2d) 256.

FRANK, P.J.

Action to recover damages for alleged personal injuries. Plaintiff below, respondent here, recovered judgment for $10,000, and defendant appealed.

This submission of the case is on rehearing. On the former hearing an opinion written by Commissioner STURGIS was handed down holding that plaintiff made a case for the jury, but reversing and remanding the cause because of error in the instruction on the measure of damages. We agree with and adopt that part of the opinion which holds that plaintiff made a case for the jury. That part of the opinion reads as follows:

"The defendant, a city of the third class, appeals from a judgment against it in a personal injury action alleged to have been caused by a defective sidewalk crossing. There was a brick sidewalk on the north side of Brook Street, an east and west street of that city, and connecting with this at Caldwell Street, running north and south, there was a board walk crossing the west side ditch of that street in order to cross that street to the east side. This ditch was about four feet wide and some two to three feet deep. The board crossing-walk consisted of three parallel two-inch oak boards about a foot wide and ten to twelve feet long. These boards rested on the ground on either side of the ditch about four feet at each end and the middle four feet spanned the ditch without any further support. This board crossing-walk formed a sort of bridge over this ditch.

"It is alleged and plaintiff's evidence showed that this board walk over this ditch had been there a long time, was old and the boards weakened and partially decayed, and the same had sagged down in the middle over the ditch and raised up at the end where it joined the sidewalk, so that the ends of the boards were two or three inches higher than the connecting brick walk. These boards were also somewhat springy so that when a person's weight was on the part over the ditch, that caused the ends of the boards to raise up still more. There was also evidence that these boards had been nailed to cross pieces or stringers, but that the stringers had become rotten, the nails pulled out, and the boards were lying loose on the ground. Plaintiff claimed that in attempting to go east on this board walk over this ditch he caught his foot on or under the end of one of the boards, was tripped up and thrown forward, falling on the edge of the walk and into the ditch, receiving severe injuries to his back and kidney, resulting in partial paralysis and permanent injury. The answer charged contributory negligence in that `if plaintiff had used his ordinary senses he would not have fallen,' and not only denied the allegations as to his injury, but directly charged that plaintiff is falsely exaggerating his illness and alleged injuries and is pretending to have sustained much more severe injuries than he actually sustained, and is pretending to be suffering greater pain than he is in fact suffering. The evidence in the case was directed chiefly to plaintiff's contributory negligence in attempting to go over this dangerous crossing walk, with the conditions of which he was perfectly familiar, and in attempting to show that plaintiff was to a large extent malingering and that his ailments were due to causes other than his fall on this crossing.

"The record in this case is somewhat lengthy, containing, in addition to the usual matters, the opening statements of the respective counsel and the arguments made to the jury. These matters have been found interesting and show that the case was tried before an able judge and with much vigor and zeal by the respective attorneys. The suit was commenced in Linn County, where Brookfield is located but on change of venue was tried in Sullivan County. Both parties took occasion during the argument to compliment the splendid character of the jury called in the case, but when that jury returned a verdict for plaintiff for ten thousand dollars damages, we take it that defendant's counsel were no longer bound by what they had previously said in this respect.

[1] "Attending to the assignments of error, it is insisted that plaintiff was conclusively shown to have been guilty of contributory negligence, barring his recovery. This insistence is based on the fact that plaintiff lived on the same street only a short distance from this crossing, had passed over it frequently, observed the condition of the boards, knew that same were loose, old, and worn, and that the ends next to the sidewalk were raised some two or three inches above the level, etc. Plaintiff's evidence tended to show, however, that in grading and repairing this street a short time before this accident, these crossing boards had been torn up, the ditch cleaned out, and the boards replaced, and...