Cowgill v. City of St. Joseph

• Decision Date: 04 May 1914
• Docket Number: No. 10844.,10844.
• Citation: 167 S.W. 1157,180 Mo. App. 327
• Parties: COWGILL v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

167 S.W. 1157

180 Mo. A. 327

COWGILL v. CITY OF ST. JOSEPH.

No. 10844.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

Rehearing Denied June 1, 1914.

1. MUNICIPAL CORPORATIONS (§ 822) — DEFECTIVE STREETS — SNOW AND ICE — INSTRUCTIONS.

In an action for injuries to a pedestrian by falling on ridges of ice on a sidewalk, an instruction that, before the jury could find for plaintiff, they must believe that the ridges and lumps of ice on the day of the accident, and for a long time prior thereto, rendered the sidewalk at the place in question "dangerous and unsafe" and "not reasonably safe" for pedestrians traveling over and on the sidewalk at such place was not objectionable in that the use of the words quoted required of the city a higher degree of care than that imposed by law.

2. MUNICIPAL CORPORATIONS (§ 771) — DEFECTIVE STREETS — INJURIES TO TRAVELERS — INSTRUCTIONS.

Where a pedestrian was injured by falling on ridges of ice and snow formed from water running from an alley and freezing, an instruction that the jury could not find for plaintiff if the ice had formed from water running out of the alley and freezing on the nights or days recently before she fell was proper.

3. MUNICIPAL CORPORATIONS (§ 816) — DEFECTIVE STREETS — INJURIES TO TRAVELERS — PLEADING AND EVIDENCE — VARIANCE.

Where, in an action for injuries to a pedestrian by falling on ridges of ice, both parties treated the obstruction as composed of snow and ice or ice made up of compacted snow and ice, so as to form a ridge or mass of ice, an instruction was not objectionable because of its reference to snow and ice, when the petition charged only that plaintiff fell by reason of ridges of ice.

4. DAMAGES (§ 177) — PERSONAL INJURIES — MEDICAL AND SURGICAL SERVICES.

In an action for injuries, evidence as to a physician's charge for medical and surgical services rendered to plaintiff was admissible, where she was personally liable therefor.

5. TRIAL (§ 260) — INSTRUCTIONS — REQUESTS TO CHARGE — INSTRUCTIONS GIVEN.

A request to charge, covered by instructions given, may be properly refused.

6. DAMAGES (§ 132) — EXCESSIVENESS — PERSONAL INJURIES.

Plaintiff fell on an icy sidewalk, sustaining a Pott's fracture of the right leg, just above the ankle, which was dislocated. The ligaments and cartilage were torn loose; both bones being broken and the ankle turned, resulting in a permanent deformity of the foot, a sinking down of the arch, making it painful ever to walk thereon. Plaintiff was confined to her bed for two months, and at the trial was suffering pain in her foot, and defendant's expert, after examining it, testified that she would always have more or less trouble with it. Held, that a verdict of $5,000 was not excessive.

Appeal from Circuit Court, Buchanan County; Chas. H. Mayer, Judge.

Action by Mrs. Annie Cowgill against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank B. Fulkerson, L. E. Thompson, and Herman Hess, all of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff, with two lady companions, was walking along the north side of Edmond street in St. Joseph. The three were walking abreast, plaintiff on the outside, about 6:50 o'clock in the morning of January 11, 1913. When they reached the center of the north and south alley between Fourth and Fifth streets, which alley intersected Edmond street at right angles, plaintiff received a fall, fracturing both bones of the right leg a short distance above the ankle, dislocating the ankle, tearing the ligaments and cartilage loose, and producing what the doctors call a Pott's fracture, which involves an outward displacement of the foot. She brought this suit against the city for damages, alleging that the walk was dangerous and unsafe by reason of ice which had formed and accumulated so as to...