Harrington v. City of Sedalia

• Decision Date: 04 November 1889
• Citation: 12 S.W. 342,98 Mo. 583
• Parties: HARRINGTON et al. v. CITY OF SEDALIA.
• Court: Missouri Supreme Court

12 S.W. 342

98 Mo. 583

HARRINGTON et al. v. CITY OF SEDALIA.

Supreme Court of Missouri.

November 4, 1889.

WITNESS — HUSBAND AND WIFE — INSTRUCTIONS.

1. Under the Missouri statutes the husband is not a competent witness in an action by the husband and wife for personal injuries to the wife.

2. A party cannot, on appeal, complain of instructions embodying principles advanced by himself, or which contain inconsistencies arising from those given at his request.

3. A plaintiff cannot complain of an instruction which requires the finding of facts unnecessary for a defense.

4. Where instructions, taken together, fairly present the rule of law, a judgment will not be reversed on account of the incompleteness or vagueness of one of them.

Appeal from circuit court, Pettis county; RICHARD FIELD, Judge.

Plaintiffs, Edward E. Harrington and Mary E. Harrington, are husband and wife. Their claim is for personal injuries to Mrs. Harrington, caused by a defective plank-walk in a street in Sedalia. The defense asserts her contributory negligence, and that the place where the injury occurred was not part of the public highway. An addition to the city had been laid out by plat, approved by the municipal authorities, and recorded by the land-owner. It represented the place in question as part of a dedicated street. Whether or not the city had opened it to public travel before the plaintiff was injured was an important issue in the case, upon which the evidence was conflicting. At the trial the court gave a number of instructions, some of which, with other material matters, will be noted in the opinion. A verdict for defendant resulted. Plaintiffs appeal.

E. J. Smith and W. R. Aldrich, for appellants. Louis Hoffman, for respondent.

BARCLAY, J.

1. Plaintiffs complain of the action of the court in submitting to the jury, by an instruction, the question whether the street where the injury occurred "was then and there necessary for the convenience and use of the traveling public," and in repeating that idea in other instructions given for defendant. This objection loses whatever force it might otherwise have when it is noted that the court had approved the same theory at the instance of plaintiffs themselves. We find recited in the fifth instruction for plaintiffs, among the facts necessary to a recovery, the following: "And, if the public convenience required a sidewalk on the north side of said portion of said street, then it was defendant's duty to maintain a sidewalk there in a safe condition for persons passing along the same and if you find that defendant neglected so to do, and that plaintiff, in walking along said walk at the time alleged, and in the exercise of reasonable care, fell and was injured because of such neglect, you will find for the plaintiffs." Parties cannot usually maintain objections here to instructions embodying the principles they themselves asserted in the trial court. Tetherow v. Railroad Co., 98 Mo. 85, 11 S. W. Rep. 310.

2. It is next claimed that the court erred in using certain language in defendant's fourth instruction. We will indicate it by italics to show the context. "(4) If the jury believe, from the evidence, that...