Gable v. City of Kansas City

• Decision Date: 07 March 1899
• Citation: 148 Mo. 470,50 S.W. 84
• Parties: GABLE v. CITY OF KANSAS CITY.
• Court: Missouri Supreme Court

50 S.W. 84

148 Mo. 470

GABLE v. CITY OF KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

March 7, 1899.

MUNICIPAL CORPORATIONS — ACTION FOR INJURIES ON SIDEWALKS — EVIDENCE.

In an action for injuries alleged to have been caused by a defective sidewalk, evidence of a similar accident to another at the same place is inadmissible.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Carrie E. Gable against the city of Kansas City. From a verdict and judgment for defendant, plaintiff appeals. Affirmed.

Geo. W. Day, for appellant. Herbert S. Hadley, for respondent.

ROBINSON, J.

By this action plaintiff sought to recover damages for personal injuries alleged to have been sustained by her in consequence of the defective condition of a board sidewalk on one of the streets of Kansas City, Mo. Plaintiff's claim is that on the 12th day of June, 1894, while walking on the sidewalk on the west side of Flora avenue, in Kansas City, between Eleventh and Twelfth streets, she stepped into a hole in the sidewalk, fell, and was seriously injured; the hole being concealed, or partly concealed, from view by a growth of weeds and other vegetation. The answer was a general denial, coupled with a plea of contributory negligence. There was a trial in the circuit court, which resulted in a verdict for the defendant, and the plaintiff, after the usual preliminaries, has appealed.

The testimony on the merits is neither preserved in the bill of exceptions nor abstracted in this record. The record simply shows that plaintiff offered testimony, through herself and other witnesses, tending to support the allegations of her petition, and that defendant offered testimony tending to support the allegations of its answer; and that, of the witnesses called by the plaintiff, one Ritta Hayes, after stating that she was acquainted with the condition of the sidewalk in June, 1894, at the place where plaintiff was injured, and that it was in a bad condition, and that she believed a little of it was broken off at each corner, and that she frequently used the walk in going to and from her home to different parts of the city, was asked the following question: "Did you ever fall or go through the walk at that point?" This question, on the objection of defendant, was excluded by the trial court, and the plaintiff excepted; the court saying, at the time of sustaining the objection, "The witness may state the condition of the sidewalk." The only question presented by the record for review now is the ruling of the circuit court in excluding the testimony of the witness Hayes on this one point. Whether evidence of similar accidents, by another, upon an alleged defective walk, at the place where the injury complained of is charged to have occurred, within a reasonable time before or after the accident, is admissible, is a question that has given rise to numerous and conflicting opinions in the different courts of our country. In point of number, as well as in the strength of reason upon which the two adverse rules have been announced, however, we think the...