Evans v. Town of Trenton

• Decision Date: 29 November 1892
• Parties: Evans v. Town of Trenton, Appellant
• Court: Missouri Supreme Court

20 S.W. 614

112 Mo. 390

Evans v. Town of Trenton, Appellant

Supreme Court of Missouri, Second Division

November 29, 1892

Appeal from Grundy Circuit Court. -- G. L. Winters, Esq., Special Judge.

Reversed and remanded.

O. M Shanklin and George Hall for appellant.

(1) The first instruction given by the court on the part of the plaintiff is erroneous in this, that it tells the jury that "it was the duty of defendant to keep its streets and sidewalks in good repair, free from obstruction, and safe for travel," which requires defendant's walks to be perfectly good and absolutely safe, a duty the law does not require of it; but it is its duty to keep its walks in reasonably safe repair, and reasonably safe for travel only. Bunson v. St. Louis, 92 Mo. 482; Kling v. City of Kansas, 27 Mo.App. 231; Barrett v. St Joseph, 53 Mo. 290; Kiley v. City of Kansas, 87 Mo. 103; Carrington v. St. Louis, 89 Mo. 208; Morse v. Springfield, 101 Mo. 613; Dillon on Municipal Corporations [3 Ed.] sec. 1019. (2) The instruction is objectionable for the further reason that to entitle plaintiff to recover she was required to use reasonable care in passing over the walk. This omission is not cured by the words, "without fault or want of proper care on her part." See the authorities above cited. Loosh v. Des Moines, 38 N.W. 384; Kendall v. Albia, 34 N.W 833; Halloway v. Lockport, 7 N.Y.S. 363; Sandwich v. Dalon, 23 Am. St. Rep. 598; 133 Ill. 177; Salmon v. Trenton, 21 Mo.App. 182; Dillon on Municipal Corporations [3 Ed.] sec. 1020. These errors are not cured by defendant's instructions, but are in conflict therewith. Staples v. Town of Canton, 69 Mo. 592. (3) The respondent's first instruction is erroneous for the further reason that what was proper care on the part of respondent is a question of law, and should have been defined by the court, and not submitted to the jury. State v. Mitchell, 98 Mo. 657; Albert v. Besel, 88 Mo. 150; State to use v. Reyburn, 31 Mo.App. 385; Morgan v. Durfee, 69 Mo. 469; Carson v. Machine Co., 36 Mo.App. 462; Turner v. Railroad, 76 Mo. 261. (4) The second instruction given on behalf of plaintiff is erroneous, because it ignores the question of contributory negligence. Stucker v. Green, 94 Mo. 280; Birtwhistle v. Woodward, 95 Mo. 113; Bailey v. Beasley, 32 Mo.App. 406; Craycroft v. Walker & Co., 26 Mo.App. 469. (5) Appellant's application for a change of venue was a substantial requirement of the statutes, and the court erred in overruling the same. Revised Statutes, 1889, secs. 2258, 2262; Dowling v. Allen & Co., 88 Mo. 293. (6) The statements made by plaintiff's attorneys in their closing argument, in regard to matters of which there was no evidence prejudicial to the defendant, being objected to and persisted in, in violation of the admonition of the court, was such error as entitles appellant to reversal and a new trial. Fathman v. Tumilty, 34 Mo.App. 236; Sidekum v. Railroad, 93 Mo. 400; Bishop v. Hunt, 24 Mo.App. 373; State v. King, 64 Mo. 591; Roeden v. Studt, 12 Mo.App. 566; State v. Lee, 66 Mo. 165; Brown v. Swineford, 44 Wis. 282; Henry v. Railroad, 30 N.W. 630; Ritter v. Bank, 87 Mo. 574; Cable v. Cable, 28 Am. Rep. 338; State v. Young, 99 Mo. 666; Haynes v. Trenton, 108 Mo. 123. And the same rule applies as to the opening argument. Henry v. Railroad, 30 N.W. 630; Reikabus v. Galt, 16 N.W. 384; Porter v. Thorp, 11 N.W. 174. (7) The damages assessed by the jury are excessive. Haynes v. Trenton, 108 Mo. 123.

Harber & Knight and Luther Collier for respondent.

(1) Plaintiff's first instruction did not require defendant's walks to be "perfectly good and absolutely safe," as appellant would seem to want inferred; but it simply told the jury that "it was the duty of defendant to keep its streets and sidewalks in good repair, free from obstruction and safe for travel in the ordinary modes, by day and by night." The instruction as given is in proper form. Roe v. Kansas City, 100 Mo. 190; Russell v. Columbia, 74 Mo. 480; Fritz v. Kansas City, 84 Mo. 632. (2) The instructions taken as a whole rightly declared the law, which is all that is required. Owens v. Railroad, 95 Mo. 169; Meyers v. Railroad, 59 Mo. 223; Gamache v. Piquignot, 17 Mo. 310; Davis v. Brown, 67 Mo. 313; Noble v. Blount, 77 Mo. 235; Yocum v. Trenton, 20 Mo.App. 489; Barr v. City of Kansas, 105 Mo. 550; Ridenhour v. Railroad, 102 Mo. 290. (3) "Nor will a judgment be reversed for every obscurity or inaccuracy of expression that an instruction may contain. To warrant a reversal there must be positive error, such as materially affects the merits of the action." Revised Statutes, 1889, sec. 2303; Haniford v. City of Kansas, 103 Mo. 172; Valle v. Picton, 91 Mo. 207; Gordon v. Eans, 97 Mo. 587; Ridenhour v. Railroad, 102 Mo. 270. (4) The alleged improper remarks of counsel cannot avail the appellant: First. Because no exceptions were saved to the same as required by statute and the repeated rulings of this court. Revised Statutes, 1889, sec. 2167; State v. Hayes, 81 Mo. 574; State v. Pagels, 92 Mo. 300; Sidekum v. Railroad, 93 Mo. 400; State v. West, 95 Mo. 139; Krogel v. Givens, 79 Mo. 77; State v. Harkins, 100 Mo. 539. Second. Because the argument of counsel is a matter particularly under the control of the trial court, which hears both sides and can determine how far the objectionable remarks and illustrations of one side are provoked by those of the other. This the supreme court cannot do, and ought not, therefore, to reverse in any case on such ground. State v. Young, 105 Mo. 634; Loyd v. Railroad, 53 Mo. 509; Huckshold v. Railroad, 90 Mo. 548; Sidekum v. Railroad, supra. Third. Because "the attention of the court should have been called to the language and conduct of the attorney by the proper objection, and a ruling had thereon by the court. If the objection is overruled and an exception taken to the ruling, the question may be reviewed in the supreme court upon the decision of the trial court. Without such ruling and exception there is nothing for the reviewing court to consider." McLain v. State, 18 Neb. 154; Bohanan v. State, 18 Neb. 57, and cases, supra; Revised Statutes, 1889, sec. 2167. Fourth. Because the refusal of the trial court to grant appellant a new trial shows that he considered his rebuke of the attorney as sufficient to correct any supposed injury from the objectionable remarks.

OPINION

Thomas, J.

Action for personal injuries. Judgment in the court below for plaintiff for $ 4,000, and defendant appeals.

Plaintiff in her petition alleges that the sidewalk on one of defendant's streets was by its negligence permitted to remain in a defective and dangerous condition for travel, and by reason thereof she fell and received serious and permanent injuries.

The defendant's answer was a general denial, and contained a plea of contributory negligence on the part of the plaintiff.

The evidence on the part of the plaintiff tended to show that the sidewalk in question was constructed of boards placed on stringers, the latter at the point where the alleged injury occurred being off the ground, so that the walk would sway up and down when a person passed over it; that two boards were off at the place and time of the accident, and had been loose and frequently off for months previously; that plaintiff, about nine o'clock in the evening of May 11, 1890, while returning home from church in company with her daughter and two other ladies, stepped into the hole caused by the absence of these two boards, and fell into a ditch outside of the sidewalk, by which she received such a shock as to permanently impair her health and mind. No external injuries were proved to have been caused by the fall. Plaintiff also knew that this sidewalk was out of repair.

On the part of defendant, the evidence tended to prove that the sidewalk was in reasonably safe condition; that Mrs. Burdoin and plaintiff walked from church together, Mrs. Burdoin being on the outside and having plaintiff by the arm, the daughters of these two women being immediately in front of them; that Mrs. Burdoin and plaintiff were conversing when the former stepped off the sidewalk or stumbled and fell off, and thus caused plaintiff to fall; that they knew the defective condition of the sidewalk, and that the difference in plaintiff's condition as to mental and bodily strength and health, ability to work and habits of life, before and after her fall, was scarcely perceptible, some of the witnesses testifying that there was no difference whatever. The other facts necessary to an understanding of the points decided will appear in the opinion.

I. An application for change of venue constitutes no part of the record unless made so by bill of exceptions. Stearns v. Railroad, 94 Mo. 317, 7 S.W. 270; State v. Ware, 69 Mo. 332. This being the law, we cannot notice the error defendant assigns in the court's action in overruling its application for change of venue, such application not being preserved by bill of exceptions in this case.

II. Defendant complains of the remarks of counsel. The record recites that one of plaintiff's attorneys in his closing argument to the jury, "contrary to the objections of defendant's counsel and the admonitions of the court stated of and concerning a former trial of this case at Chillicothe, Missouri, that one of the defendant's attorneys swore that defendant could not proceed to trial in said cause, because plaintiff had amended her petition, and that defendant wanted to get physicians to examine plaintiff as to the injuries alleged, and that defendant had failed to do so; * * * that Mrs. Burdoin had testified that she had stepped into the alleged hole in the sidewalk, and the mark of her wounds and injuries were plain to be seen; that the jury saw her limping into cour...