Devlin v. City of St. Louis

• Decision Date: 10 July 1913
• Citation: 158 S.W. 346,252 Mo. 203
• Parties: MARY DEVLIN v. CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

158 S.W. 346

252 Mo. 203

MARY DEVLIN v. CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

July 10, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Reversed and remanded.

William E. Baird and Robert Burkham for appellant.

(1) Plaintiff's own testimony indisputably establishes that she was guilty of contributory negligence as a matter of law. Craine v. Railroad, 152 S.W. 24; Cohn v. Kansas City, 108 Mo. 387; Ray v. Poplar Bluff, 70 Mo.App. 252; Wheat v. St. Louis, 179 Mo. 572; Coffey v. Carthage, 186 Mo. 573; Woodson v Railroad, 224 Mo. 685; Ryan v. Kansas City, 232 Mo. 471; Diamond v. Kansas City, 120 Mo. 185; Border v. Sedalia, 161 Mo.App. 633. (2) Respondent's instruction number four is clearly erroneous, since it permits the jury to compensate her for loss of time, though there is no evidence showing its value. Davidson v. Transit Co., 211 Mo. 320; Slaugher v. Railroad, 116 Mo. 269; Stoetzle v Swearingen, 96 Mo.App. 592; O'Brien v. Loomis, 43 Mo.App. 29; Mammerberg v. Railroad, 62 Mo.App. 563; Leach v. Railroad, 137 Mo.App. 300; Paquin v. Railroad, 90 Mo.App. 118.

L. Frank Ottofy for respondent.

(1) The testimony being disputed as to the condition of the sidewalk, it appearing that many persons had used it, the question of contributory negligence was clearly a question of fact for the jury. A pedestrian is not precluded from passing over a sidewalk which he knows to be defective unless the danger was so great that a person of ordinary prudence would, in the exercise of ordinary care, have changed his course. Combs v. Kirksville, 134 Mo.App. 645; Flynn v. Neosho, 114 Mo. 567; Graney v. St. Louis, 141 Mo. 181; Taylor v. Springfield, 61 Mo.App. 263; Chilton v. St. Joseph, 143 Mo. 202; Swanson v. Sedalia, 89 Mo.App. 128; Beauvais v. St. Louis, 169 Mo. 506; Swails v. Caruthersville, 158 Mo.App. 601; Loftis v. Kansas City, 156 Mo.App. 683; Howard v. New Madrid, 148 Mo.App. 57; Hill v. St. Joseph, 143 Mo.App. 389; Chase v. Railroad, 134 Mo.App. 655. (2) Respondent's instruction number 4, authorizing the jury to find for plaintiff "for loss of time and inability to labor," was properly given, because: (1) she was a widow entitled to her earnings; (2) the value of housework is within the common knowledge of the jury and requires no proof; but there was evidence from which her loss can be estimated and to which there was no objection; (3) inability to labor is a violation of her personal rights. Wellmeyer v. Transit Co., 198 Mo. 527; McNeill v. Cape Girardeau, 153 Mo.App. 424, 160 Mo.App. 620; Becker v. Real Estate Co., 118 Mo.App. 82; Ingles v. Railroad, 145 Mo.App. 241; Cullar v. Railroad, 84 Mo.App. 346, 351; McRae v. Railroad, 125 Mo.App. 562; Nelson v. Railroad, 113 Mo.App. 665; Mabrey v. Gravel Road Co., 92 Mo.App. 603; Peltier v. City, 237 Mo. 694; Snickles v. St. Joseph, 155 Mo.App. 311.

BOND, J. Woodson, P. J., Lamm and Graves, JJ., concur.

OPINION

STATEMENT.

The plaintiff when walking over the pavement of Louisiana avenue with her daughter on November 8, 1906, was tripped by striking her foot against one of the tilted ends of a plank, which laid lengthwise and with two other planks formed the walk, thereby causing her to fall down and injure her right leg near the knee.

At the time of the accident, which was about six p. m., plaintiff was on her way to the Grand avenue street car line to ride to Beers Hotel, where she was to take dinner with another daughter.

After the fall the plaintiff was assisted to arise and proceed on her journey to the car, which she was assisted to enter by the conductor. When she arrived at the hotel she was met by her daughter and a friend of the latter, and went to her daughter's room where her limb was rubbed with liniment. The meal was then had, after which, the plaintiff and the daughter who had accompanied her, about nine p. m., returned on the street car to the point where she had embarked on it and thence walked home.

Plaintiff states that her limb was much swollen after the accident and caused her much suffering during the night, so that she called in a physician, Dr. Borne, the next morning, who testified to the best of his recollections he visited the plaintiff about six times, that he prescribed "hot applications and antiphlogistine later on after the acute swelling was over; and bandaging so as to give rest until the ligaments and other parts could be restored; and, that he thought there was a perfect cure. But it was impossible to tell beforehand, as sometimes this happened and sometimes it did not."

The plaintiff testified she was confined to her bed for about three weeks, during which time she hired a woman helper to do the housework, which she herself had performed previous to the accident. For this service she paid $ 1.35 per day. Plaintiff caused to be taken some photographs of the scene of the accident, but she made no claim therefor until the bringing of the present suit more than two years later.

Shortly before the trial of this case the plaintiff called at the office of another physician who stated that "he found from the statement of the plaintiff what seemed to be a sensitiveness on the inner side of the right knee -- on pressure." According to the doctors, this is what is termed by them a "subjective symptom," by which they mean a symptom resting on the statement of the patient, and not one discovered by them, which they call an "objective symptom."

For the defendant, there was evidence that the plaintiff had used the sidewalk for a number of years and was fully aware of its condition. That sometime after the accident she had been observed by her next door neighbor to be doing outside work -- sweeping the pavement. The defendant also introduced a physician who examined plaintiff, at the time of the trial, who testified that he found no difference in her two knees. That he noticed crepitation, or a crackling upon movement of the left knee. That this is very common among old people and meant nothing. That she did not appear to be lame when she walked into the room, that she complained when he pressed her right knee and that she wore a "rubber stocking," that he found no "objective symptom" of lameness.

The present suit was brought on the theory of negligence on the part of the city in permitting the sidewalks to remain in a dangerous and unsafe condition, thereby causing the injury sued for. The answer was a general denial and plea of contributory negligence. Plaintiff had judgment for $ 1750, from which the defendant duly appealed and assigns for error the refusal by the court to direct a verdict in its favor and the giving, over of its exceptions, of subdivision (3) of instruction numbered 4 for the plaintiff, to-wit: "(3) For the loss of time and inability to labor, which the jury believed from the evidence she has sustained or will sustain by reason of said injuries and directly caused thereby, not exceeding the sum of $ 2000."

OPINION.

I.

BOND, J. (After stating the facts as above.) --

The trial court...