Haynes v. Town of Trenton

Citation27 S.W. 622
PartiesHAYNES v. TOWN OF TRENTON.
Decision Date19 June 1894
CourtMissouri Supreme Court

8. Per Macfarlane, J. (Black, C. J., and Brace, J., concurring): Where plaintiff exhibits his injured leg to the jury on a trial as to the cause of the injury, it is error to refuse permission to the adverse party to have the leg examined in open court by experts, with a view to introduce their testimony as to the character of the injury and its probable permanency.

(Syllabus by the Judge.)

Appeal from circuit court, Sullivan county; G. D. Burgess, Judge.

Action by George B. Haynes against the town of Trenton. Judgment for plaintiff. Defendant appeals. Reversed.

This is an action to recover compensation for personal injuries sustained by plaintiff. It is based on defendant's alleged negligence in omitting reasonable care to keep a sidewalk in proper repair for public use. It is the same proceeding that was before the second division on a former occasion. Haynes v. Town of Trenton (1892) 108 Mo. 123, 18 S. W. 1003. Plaintiff's case, shortly stated, is that he fell through a hole in the sidewalk of one of the public streets in the city of Trenton, Mo. He was walking homeward, about 7 p. m., January 12, 1888, when the boards of the plank walk provided for pedestrians on Fifth street, in that city, gave way. Plaintiff fell into the hole and upon some loose rocks below. At the place of the accident, according to plaintiff's account, the footway was quite narrow. The planks were loose, worn, and old. One was entirely out, and some of the crosspieces (for supports) were gone. The sidewalk and streets were covered with snow at the time, though no negligence is charged against defendant on that account. The hole into which plaintiff fell was about 3 feet deep. Plaintiff described his injuries fully at the trial, but it will not be necessary to state them now particularly. There was testimony that the defective condition of the sidewalk described had existed for months before plaintiff's misfortune. The defenses were a denial of the alleged negligence, and a counter charge of contributory negligence. The case was tried with the aid of a jury, who returned a verdict for plaintiff in the sum of $5,000, upon which judgment was rendered. Defendant appealed, after the necessary motions and exceptions to secure a review.

Geo. Hall, O. G. Williams, O. M. Shanklin, and J. P. Butler, for appellant. Harber & Knight, for respondent.

BARCLAY, J. (after stating the facts).

One of the instructions given at the instance of the plaintiff, and now assigned as error, is as follows: "(6) Although the plaintiff may have frequently passed over the walk in question, and knew the condition thereof, and knew of the excavation or hole, yet, if the same was one of the accustomed routes of travel in said town, and in general use by the public, he was not bound to abandon the same, but had the lawful right, notwithstanding his knowledge aforesaid, to travel upon and over said walk; and the law only exacts of him the exercise of ordinary care while so doing, and the law presumes that he was and did exercise such care, and the burden of proof is on the defendant to show to the contrary, to the reasonable satisfaction of the jury."

1. Defendant's objection to the instruction just quoted relates to that part which declares that the law presumes plaintiff was exercising ordinary care at the time of the accident. That sort of statement to the jury has often been condemned of late, in cases involving the same principles that govern this one. The statement does not even accurately embody a rule of law, to say nothing of its obviously misleading tendency. When the evidence before a jury is such as to justify an inference or finding of contributory negligence on plaintiff's part, the law does not presume that he is guiltless of such negligence. The issue of his negligence, viewing it most favorably for him, is then one of fact for the jury, and to that issue it is their province to respond. To tell them that the law entertains a presumption that plaintiff was exercising proper care, in the face of evidence tending to a contrary conclusion, has, necessarily, the effect to greatly weaken the probative force of that evidence. In the case at bar there was direct testimony of admissions by plaintiff to several witnesses that, while he was looking at some persons in a passing sleigh, he walked off the sidewalk, and so was injured. He contradicted...

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