Dolan v. City of Moberly
| Decision Date | 13 April 1885 |
| Citation | 17 Mo.App. 436 |
| Parties | MAGGIE DOLAN and HUSBAND, Respondents, v. THE CITY OF MOBERLY, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court, HON, ELIJAH ROBINSON, Judge.
Affirmed.
The facts sufficiently appear in the opinion of the court.WM. B. SANFORD, for the appellant.
I. The court erred in admitting the testimony of plaintiff as to her pathological condition, * * because it was only a matter of opinion on her part. It was a scientific question, on which the evidence of a medical expert only was admissible, and she was not competent.--1 Greenl. Evid. (13 ed.) sect. 440; Sparr v. Wellman, 11 Mo. 230; Emerson v. Gaslight Co., 6 Allen (Mass.) 148; 26 Mo. 530; 30 Mo. 160; 3 Dougl. 157; 1 Sm., Leading Cases, 286.
II. The court erred in the instruction relating to condition of sidewalk and knowledge of it by defendant and the care of plaintiff, because it is misleading. Here there was contributory negligence. Two things must concur to make city liable. 1. That thoroughfare was out of repair by negligence of city. 2. That plaintiff at time of injury was using ordinary care.-- Bassett v. St. Joseph 53 Mo. 302; 63 Mo. 419; 45 Mo. 449; 16 Pick, 189; 54 Mo. 598.
III. A general charge of negligence will not suffice. It must be pleaded and also proved.--4 Wall. (U. S.) 658; 42 Mo. 191; 49 Mo. 170. The instruction on the subject was misleading and erroneous; as also the refusal to give one asked by defendant as to use of ordinary care by plaintiff.-- Craig v. Sedalia, 63 Mo. 417.
IV. The testimony for the plaintiff is unsatisfactory and unreliable. It plainly appears by admissions that there was negligence on her part contributing directly to the accident.
HOLLIS & WILEY, for the respondents.
I. Pathology does not extend to disqualifying a witness to the fact of having a headache, finger off, running sore, etc. If any one is competent to testify to the fact, it is certainly the sufferer. And to cause or move to cause an injured plaintiff to be examined by a physician is unknown to our law.-- Lloyd v. Hannibal & St. J. R. R. Co., 53 Mo. 509.
II. As to plaintiff's injury her testimony is fully sustained by the witnesses. The defendant's instructions were properly refused, as failing to qualify the degree of care, as not warranted by the evidence and as not correctly declaring the law.
III. If plaintiff had knowledge of the defective condition of sidewalk, it is not conclusive evidence of contributory negligence. The law presumes that plaintiff was in the exercise of ordinary care and this presumption is not overthrown by the fact of injury or by reason of knowledge of the defective condition of sidewalk. The question of contributory negligence was properly submitted to the jury under the instructions given by the court.-- Brusching v. St. Louis Gaslight Co., 73 Mo. 233, and cases cited; Smith v. St. Joseph, 45 Mo. 449; Russell v. Columbia, 74 Mo. 480 and 494 and cases cited.
IV. It was the duty of the city to keep its sidewalks in a reasonably safe condition, and it is liable for its failure, if plaintiff was using ordinary care. The answer admits its control over sidewalks, and the testimony shows it located in the business part of the city and actual knowledge of its condition on the part of defendant. These are the facts for the jury under proper instructions.-- Craig v. Sedalia, 63 Mo. 417; Oliver v. Kansas City, 69 Mo. 79; Maneman v. Surreats, 71 Mo. 101; Logan v. St. L., I. M. & S. Ry. Co., 72 Mo. 392.
V. Petition sufficient and city liable.-- Brown v. Kansas City, 57 Mo. 454; Bassett v. St. Jo., 53 Mo. 290; Hall v. Kansas City, 54 Mo. 598; Blake v. St. Louis, 40 Mo. 570.
Opinion by ELLISON, J.
The plaintiff sued the defendant in the Moberly court, of common pleas, claiming damage for injuries received by falling on and partly through a sidewalk on defendant's streets.
The case was removed to the Audrain circuit court, where on trial plaintiff obtained judgment for $1,425.00. Defendant appeals to this court, assigning as error on part of the court below the overruling of its demurrer to the evidence and giving instructions number one and four for plaintiff, and refusing number five offered by defendant. Also in permitting plaintiff to testify when speaking of her injuries, “that she had two abscesses and that her womb was down;” for the reason “it was a scientific question, on which the evidence of a medical expert only, was admissible and she was not competent.”
Defendant complains of plaintiff's instructions by number, although they do not appear to be numbered in the record. Plaintiff's instruction number four is objected to, while there are but three in the record, and in setting out objections to instruction number one, matters are objected to wholly foreign to anything found in the instruction. The objections urged to number “four” would seem to apply to what is in number one. However, as exceptions were taken to plaintiff's instructions generally, at the trial, we will set them out for consideration, as follows:
“The court instructs the jury that contributory negligence is a defence which has to be pleaded and proved by defendant; and the burden of proof is on the defendant to show by a preponderance of the evidence that plaintiff's negligence directly contributed to the injury.
If the jury find for the plaintiff, in estimating the damages they will take into consideration her age and condition in life; the physical injury inflicted and the bodily pain and mental anguish endured, together with the loss of time occasioned, and all the expenses incurred in and about the treatment of her case, and also any and all damages which appear from the evidence will reasonably result to her from said injuries in the future, not exceeding five thousand and fifty dollars.
The court instructs the jury that, on the 21st day of October, 1881, the defendant was and for a long time had been a municipal corporation having by the terms of its charter the exclusive control and management of its sidewalks, and that it was the duty of defendant to keep the same on the streets, in general public use for travel, in a condition reasonably safe for persons passing along the same, and if you believe from the evidence that Clark street, between Reed and Rollins streets, was at that time a street in general public use for travel within the limits of the city of Moberly, and defendant neglected its duty, suffered and permitted said sidewalk on the east side of said Clark street to be and remain in a condition dangerous to persons walking thereon, and that plaintiff on or about said day, while walking on said sidewalk, unaware of danger and using reasonable care, fell...
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