Goins v. The City of Moberly
| Decision Date | 05 March 1895 |
| Citation | 29 S.W. 985,127 Mo. 116 |
| Parties | Goins v. The City of Moberly, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. R. F. Roy, Judge.
Affirmed.
Will A Rothwell and R. N. Bodine for appellant.
(1) The court erred in refusing to permit defendant to impeach the witness Marts by examining him as to his relations with his wife before her marriage. Muller v. Association, 5 Mo.App. 401. (2) The court erred in refusing defendant's instruction marked "refused instruction number 2." A city is bound to keep only so much of its sidewalk in good condition and repair as is necessary to render it reasonably safe for travel. Tritz v. City, 84 Mo. 642; Brown v. Mayor, 57 Mo. 156; Bassett v City, 53 Mo. 280. (3) The court erred in refusing defendant's instruction marked numbers 3 and 4, where a defect in a street is caused by the act of third parties there is no liability on the part of the city, unless it has actual or constructive notice of such defect. Elliott on Roads and Streets, pp. 460, 464. (4) The damages are excessive.
Frank P. Wiley for respondent.
This is an action to recover damages for personal injuries sustained by plaintiff. It is based on defendant's alleged negligence in failing to keep in proper repair for public use a sidewalk in said city.
Plaintiff fell over an obstruction on one of the sidewalks on one of the public streets. She was walking homeward at about dusk on the evening of July 13, 1889, in company with her mother stepfather, and a younger sister, when she fell over a slanting platform, about two and one half feet square, which was used to roll barrels upon, and other articles into a storeroom, and injured her left leg. At the place of the accident the sidewalk was about twelve feet wide. At the time it occurred plaintiff was about seven years and nine months old. The evidence as to the length of time the obstruction had been permitted to remain on the sidewalk before the accident was conflicting; one witness stated as long as one year or more.
The defenses were a denial of the alleged negligence, and charges of contributory negligence.
The evidence tended to show that plaintiff sustained injury by the fall, which resulted in a running sore just above the knee, which discharged pus and small pieces of bone, and that it had to be opened several times, the last occasion being about one year previous to the trial; that she was a delicate child of scrofulous constitution, had never been able to use the injured limb after the accident, and the injury to it was permanent.
The case was tried before a jury, who returned a verdict in favor of plaintiff in the sum of $ 4,000, upon which judgment was rendered. Defendant then filed motions for new trial and in arrest, which being overruled, it appealed.
Defendant's first contention is that the court committed an error in refusing to permit it to impeach the character of one of plaintiff's witnesses, Winfield S. Marts, by refusing to compel, and not compelling, said witness to answer whether or not he had not lived with his wife and sustained the same relations to her before, as after, his marriage to her, and if he had not kept her, and paid her grocery bills, and how long it was after their marriage before their first child was born. Muller v. Hospital Association, 5 Mo.App. 390; S. C., 73 Mo. 242, is relied upon as sustaining this contention; but in the opinion of the court of appeals in that case it is held that "the extent of cross-examination of this nature is somewhat in the discretion of the court, and must necessarily be so." The court committed no abuse of its discretion in refusing to compel the witness to answer the questions propounded. 1 Greenleaf on Evidence, sec. 454; State v. Parker, 96 Mo. 382, 9 S.W. 728. The judgment should not be reversed upon that ground.
There was ample evidence to justify the submission of ...
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