Cordray v. City of Brookfield
| Decision Date | 30 July 1935 |
| Docket Number | 33752 |
| Citation | 88 S.W.2d 161 |
| Parties | CORDRAY v. CITY OF BROOKFIELD |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled November 12, 1935.
H. K West, Thomas P. Burns, and Chas. K. Hart, all of Brookfield for appellant.
Lon R Owen, of Brookfield, and Waldo Edwards, of Macon, for respondent.
FERGUSON, Commissioner.
This is an action against the city of Brookfield for damages for personal injuries alleged to have been caused by a defective crossing maintained by the city at one of its street intersections. The action was commenced in the circuit court of Linn county, but on plaintiff's application the venue was changed to the circuit court of Sullivan county where the cause was tried resulting in a verdict and judgment for plaintiff in the amount of $ 10,000. Upon defendant's appeal to this court, the judgment was reversed and the cause remanded. Cordray v. City of Brookfield, 334 Mo. 249, 65 S.W.2d 938. Thereupon, and upon defendant's application, the venue was changed to the circuit court of Macon county where the cause was retried resulting in a verdict and judgment in plaintiff's favor in the amount of $ 11,000. Defendant has again appealed.
Upon the first appeal defendant urged that the trial court erred in refusing its peremptory instruction directing a verdict in its favor offered at the close of all the evidence. The contention then made in support of that assignment, viz., that the evidence conclusively shows, and, as a matter of law, that plaintiff was guilty of contributory negligence, is renewed on this appeal. On the first appeal we reviewed and examined the evidence and held a submissible case was made and that the trial court properly refused defendant's peremptory instruction, but the judgment was reversed because the instruction on the measure of damages submitted as an item of damages expenditures made, and any amount for which plaintiff had become obligated, for medicine 'because of said injuries' when there was no evidence showing what amount, or any amount, that plaintiff had expended or obligated himself to pay for medicine, though there was evidence that he had incurred such expense.
First considering appellant's assignment that the trial court erred in overruling its demurrer to the evidence. The defendant is a city of the third class. Brook street, an east and west street, in the city of Brookfield, crosses or intersects Caldwell street, a north and south street. At the date he was injured, and for approximately a year prior thereto, plaintiff resided on the north side of Brook street, his residence being a distance of about 100 feet west of the northwest corner of the intersection. A brick sidewalk along the north side of Brook street extended to the northwest corner of the intersection where it connected with a crossing of boards or planks over a ditch along the west side of Caldwell street. This drain ditch, maintained by the city, was 4 feet wide and 3 feet deep. The crossing walk consisted of three parallel 2-inch oak boards, about 12 inches in width and 12 feet in length, laid east and west across the ditch so that about 4 feet at each end rested on the ground at the sides of the ditch with the center part spanning the ditch. There was no other support. This board crossing had been maintained over a long period of time and was much traveled, being in the most direct and convenient route from that immediate vicinity to the business section of the city. Plaintiff's evidence was that at one time the ends of the boards had been fastened and nailed to stringers, but that the stringers had long since 'rotted' and that for a long time the ends of the boards had lain loose upon the ground; that on, and for a long period of time prior to, May 29, 1929, the date plaintiff claims to have fallen at this crossing, these boards were 'old and worn,' 'had rotted and decayed spots,' the 'ends were rotten,' and 'the ends were split'; that the boards were 'warped' and 'cupped up at the ends' so that the west end of the boards connecting with the east end of the brick sidewalk, along the north side of Brook street, 'stuck up above the sidewalk,' variously stated, 'two,' 'three,' and 'four inches'; that the boards were 'weak,' 'springy,' and 'sagged in the middle'; that when a person using the crossing reached the 'middle' part, the ends of the board or boards upon which he walked would 'raise up,' 'fly up,' or 'tip up'; that such conditions had existed for a long time; and that within as recently as a week or ten days prior to May 29, two city employees, laborers on the streets, had notified the street commissioner of the dangerous and defective condition of this crossing. We have quoted but a few of the descriptive terms found in the testimony of numerous witnesses, residents of the city who used this crossing and were familiar with the long existing conditions there. Plaintiff's evidence further was that on the date mentioned he was accompanying a man and two ladies, guests in his home, to the business section of the city; that they four left plaintiff's home in the early part of the afternoon, went east on the brick sidewalk on the north side of Brook street to this crossing walk at the Caldwell street intersection; that the man and one of the ladies had crossed and the other lady had reached about the middle of the crossing when plaintiff started to step onto the crossing and that as he did so the end of a board 'tipped up,' his 'right foot caught under the board,' he fell forward 'in a twist,' his side and back struck against the outside crossing board, and he fell into the ditch and was unable 'to get up'; that he was carried to his home and a doctor summoned; and that he sustained serious and permanent injuries.
The negligence charged in the petition is in effect that the city permitted the crossing walk to become and remain in a dangerous and defective condition. Defendant's answer is a general denial with a plea of contributory negligence. Plaintiff's evidence as to the dangerous condition of the crossing was undisputed. Defendant offered no evidence to the contrary limiting its evidence to an attempt to show that plaintiff was to a large extent malingering and that his fall on the crossing. In other than his fall on the crossing. In support of the demurrer to the evidence, appellant contends that plaintiff's evidence shows that he well knew the dangerous condition of the crossing and convicts him of contributory negligence, as a matter of law, in going on the crossing or attempting to use it. As we have noted, supra, this precise contention was presented, and ruled by our opinion, on the former appeal upon substantially the same state of facts, and we held a submissible case was made and that the issue of contributory negligence was for the jury. On this appeal appellant reargues the demurrer to the evidence advancing the same grounds in support thereof presented and ruled on the former appeal, but we are satisfied with our former holding, and finding no occasion to alter same, it becomes and is the law of the case on this point. Davidson v. St. Louis-San Francisco R. Co., 301 Mo. 79, 256 S.W. 169; State of Kansas ex rel. v. United States Fidelity & Guaranty Co., 328 Mo. 295, 40 S.W.2d 1050; Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Lauf v. Wiegersen (Mo.App.) 17 S.W.2d 369; People's Bank of Ava v. Rankin (Mo.App.) 30 S.W.2d 638.
Appellant's next complaint is leveled at plaintiff's instruction hypothesizing the facts, covering the whole case, and authorizing a verdict for plaintiff. The jury are required to find, among other facts predicated, that 'defendant negligently allowed and permitted said crossing walk * * * to become and remain out of repair, and that said wooden boards had become old, rotten, decayed, broken and split,' and on account thereof 'said boards' were 'caused to sway or sag at a point over the ditch and the west ends to cup up' and that 'said condition rendered said crossing walk dangerous and unsafe.' We have italicized above appellant's source of complaint, i. e., the inclusion of the words 'broken and split' It is said there is no proof that the boards of the crosswalk were 'broken and split' and therefore the instruction is 'broader than the facts proven' and 'submits a specification of negligence which is not supported by proof.' The terms were merely descriptive of the conditions. However, at least one witness in describing these boards stated and reiterated that the boards were 'split' at 'both ends,' another witness spoke of the boards as being 'busted,' and another stated they were 'rotted' and 'broken at the ends.' There was such a variety of descriptive language used by the numerous witnesses in describing the defective condition of these crossing boards that each and every term used in the instruction is to be found in the testimony. However, each of these descriptive terms used in the petition, the testimony, and the instruction did not constitute a separate specification of negligence. The sum of the negligence charged is that the city allowed and permitted the crossing to become and remain in a dangerous and unsafe condition. Plaintiff then alleged that by reason of such condition he was caused to fall and suffer the injuries complained of. We find no merit in the assignment.
The writer has found difficulty in following appellant's third assignment that the trial court erred in permitting plaintiff to introduce evidence of subsequent repair. Appellant does not direct our attention to such evidence, but merely makes the general averment and cites cases in support of a general rule. Our reading of the record does not disclose that any direct or specific...
To continue reading
Request your trial