Elliott v. Kansas City

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: Elliott v. Kansas City, 174 Mo. 554, 74 S.W. 617 (Mo. 1903)
• Decision Date: 19 May 1903
• Parties: ELLIOTT v. KANSAS CITY.

74 S.W. 617

174 Mo. 554

ELLIOTT v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

MUNICIPAL CORPORATIONS—DEFECTIVE SIDEWALKS—INJURIES — MEDICAL TREATMENT— IMPROPER PRACTICE—INSTRUCTIONS—CONSTRUCTION—OTHER INSTRUCTIONS CURING ERROR.

1. Where plaintiff, after she was injured by a defective sidewalk, employed a graduate physician of 30 years' practice to treat her injuries, and he continued to treat her until he could do no more for her, she was not responsible for such physician's improper treatment. so as to preclude her from recovering for the injuries which resulted from the accident, though such injuries might have been lessened by different or more skillful treatment.

2. In an action for injuries, an instruction that, if any part or all of plaintiff's injuries were caused by lack of medical treatment or improper medical treatment, plaintiff could not recover, could not be sustained on the ground that it simply meant that a person suffering from a disease or previous injuries, who meets with another accident, could not recover for conditions which were solely due to such previous injury or disease.

3. Such instruction was not cured by other instructions authorizing the jury to consider all plaintiff's mental and physical pain, present and future, which would reasonably result from her injuries, and, if the injuries were permanent, to consider such fact, and assess such sum as would compensate her for all sufferings, past and future, and for permanent disability; and that, if any part of the conditions that plaintiff claims to have been caused by falling on the sidewalk existed prior to the time she fell, or if such injuries were due to some other cause than the fall, the jury could award no damages for such condition as was not due to the fall.

Error to Circuit Court, Jackson County; James H. Slover, Judge.

Action by Mollie Elliott against Kansas City. From a judgment in favor of plaintiff for less than the amount demanded, she brings error. Reversed.

L. A. Laughlin, for plaintiff in error. R. B. Middlebrook, H. S. Hadley, and R. J. Ingraham, for defendant in error.

BURGESS, J.

This is an action for $10,000 damages by plaintiff against the defendant city for personal injuries alleged to have been sustained by her by reason of stepping into a hole in one of the sidewalks in said city. The defenses were general denial and contributory negligence. The trial resulted in a verdict and judgment for plaintiff in the sum of $500. She brings the case to this court by writ of error for review.

The salient facts are about as follows: At the time of the accident plaintiff was about 28 years of age, married, and living with her husband in Kansas City, Mo. On the 27th day of August, 1898, while she was walking north on the plank walk on the east side of Central street, in said city, at a point 20 or 25 feet north of Nineteenth street, she stepped with her right foot into a hole in the sidewalk, caused by a part of the plank being missing. The weeds had grown up through the hole, obscuring it. Her right leg went down into the hole as far as the knee, skinning it, and injuring the lower end of her spine. While en route home upon a street car, she commenced to suffer from severe pains in her back, so that when she arrived at the point where she had to leave the car she had great difficulty in walking to her home, about two blocks away. That night she suffered very much. Dr. Morrow was called the next day, and attended her up to the following Christmas, but was unable to relieve her. In July, 1899, Dr. Drake was called in, and found her womb retroverted with adhesions. He broke the adhesions with his finger, and placed the womb in proper position. At the time of the trial of this case on December 1, 1899, plaintiff testified that she had only been able to sit up a few minutes at a time, not over half an hour at any time since she was hurt; that she could not sit up any longer on account of severe pains in her back; that she had not been free from pain since she was hurt; that her right leg is smaller than the other, and is drawn up, and is still continuing to do so. It is claimed by counsel for plaintiff that prior to the accident she was a strong, healthy woman, did all her housework, and assisted her husband in building their house by handing up lumber to him. There was evidence tending to show that she became an invalid, and a great sufferer from womb trouble, which had its origin in the premature birth of a child in 1890; that so extremely sensitive had she become that she could not wear a corset without enduring pain in her back and side. It seems that she had inflammation of the covering of the pelvic and abdominal organs, and that in 1893 her womb could not be examined by her physician for the reason that the inflammation was too great.

At the request of plaintiff the court gave to the jury the following instructions:

"(1) The court instructs the jury that if they find from the evidence that on the 27th day of August, 1898, Central street was a public street of Kansas City; that on the said day there was a hole in the sidewalk on the east side of said street, between Eighteenth and Nineteenth streets, at a point about twenty-five feet north of Nineteenth street, which made said sidewalk not in a reasonably safe condition for persons traveling over it; that said hole was known to the officers of Kansas City having supervision of its sidewalks, or could have been known to them if they had used ordinary care and diligence in the discharge of their duties, in time to have repaired the same before said day; that on said day plaintiff, while in the exercise of ordinary care, as defined in other instructions, was traveling over said sidewalk, and stepped into said hole, and was thereby thrown down and injured—then your verdict should be for the plaintiff.

"(2) The court instructs the jury that the plaintiff had the right to assume that she could use the sidewalk on which she alleges she was walking when she fell with safety, using such care as an ordinarily prudent person would exercise under like circumstances, and, though she may have known the sidewalk was defective, yet this fact would not prevent her from recovering in this action, but should be taken into consideration by the jury with other facts and circumstances in evidence as to whether she was exercising ordinary care as above defined.

"(3) If the jury find for the plaintiff, then in estimating her damages you may take into consideration all of the mental and physical pain and anguish already suffered by her, if any, and all future mental and physical pain and anguish, if any, that will reasonably result to her from said injuries; and, if the jury find that her injuries are permanent and lasting in their character and effect, they should take this fact into consideration; and the jury should assess plaintiff's damages at such sum as, in their judgment, will compensate her for all sufferings, both past and future, if any, and for permanent disability, if any, that have or will reasonably result to her by reason of her injury, not exceeding the sum of $10,000, the amount claimed in plaintiff's petition."

At the request of defendant the court gave the following instructions to the jury:

"(2) The court instructs the jury that in determining whether or not the defective condition, if any, of said sidewalk, where plaintiff claims to have been injured, had existed for such a length of time the defendant city would have known of it by the exercise of ordinary care, you should consider, among all the other facts and circumstances as shown by the evidence in the case, the surroundings of the locality where said sidewalk is situated, the extent to which said sidewalk was used, and the opportunity for observing and noting any defects therein on the part of the defendant city, and from all the facts and circumstances determine whether or not the defendant should have known of the said defective condition, if any, of said sidewalk, prior to the date of plaintiff's injury.

"(3) The court instructs the jury that the burden of proof in this case devolves upon the plaintiff to prove to your satisfaction, by a preponderance of the credible testimony in the case, that the defendant city was negligent in the inspection and maintenance of the sidewalk at the place where plaintiff claims to have been injured; and by the burden of proof is meant the greater weight of the credible testimony in the case.

"(4) The court instructs the jury that if you believe from the evidence that any witness has willfully and knowingly testified falsely to any material fact in issue, then you may disregard all or any part of the testimony given by such witness.

"(5) The court instructs the jury that if you find and believe from the evidence that plaintiff fell and was injured on the east side of Central street at any point other than about twenty feet north of Nineteenth street, then your verdict will be for the defendant.

"(6) The court instructs the jury...