Heberling v. City of Warrensburg

• Decision Date: 16 November 1908
• Citation: 113 S.W. 673,133 Mo. App. 544
• Parties: HEBERLING v. CITY OF WARRENSBURG.
• Court: Missouri Court of Appeals

113 S.W. 673

133 Mo. App. 544

HEBERLING v. CITY OF WARRENSBURG.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. APPEAL AND ERROR (§ 1053)—HARMLESS ERROR—EVIDENCE—WITHDRAWAL.

In an action against a city for injuries from a defective street, the withdrawal by plaintiff's counsel in the presence of the jury of evidence that the city repaired the street after plaintiff's injury, and the court's announcement of the withdrawal, and direction that the evidence should not be considered, cured the error of its admission.

2. EVIDENCE (§ 472)—OPINION EVIDENCE— MATTERS DIRECTLY IN ISSUE.

In an action against a city for injuries caused by a trench in a street which had been filled by the city after removing a culvert therefrom, whether or not the trench had been properly filled was for the jury under the evidence, and opinions of witnesses were properly excluded.

3. MUNICIPAL CORPORATIONS (§ 783)—DEFECTS IN STREETS—INJURIES—MANNER OF FILLING TRENCHES.

That a trench in a city street which had been filled by the city was filled the same as it filled all such holes in streets would not relieve the city from liability for an injury occasioned thereby, since the manner in which the city ordinarily

filled such holes was not a standard of safety.

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Personal injury action by William H. Heberling against the City of Warrensburg. Judgment for plaintiff, and defendant appeals. Affirmed.

Jos. K. Tuttle, Chas. E. Morrow, and Jas. A. Kemper, for appellant. O. L. Houts, for respondent.

ELLISON, J.

This action is for personal injury received on one of defendant's streets by reason of plaintiff being thrown from a vehicle in which he was riding with a friend, and receiving serious injury. The judgment was for plaintiff. There was a former trial in which the verdict was for the defendant. The court granted plaintiff a new trial, and defendant appealed to the Supreme Court, where the order was affirmed (204 Mo. 604, 103 S. W. 36), and the trial now appealed from followed. By reference to that report, there will be found a full statement of the facts upon which the case is founded, and they need not be repeated here further than to say that defendant's officers took out of the street a wooden culvert reaching fairly across its width, 14 inches deep and 20 inches wide. The place was filled in with loose dirt. Rains and travel made the filling soft, so that the wheels of a vehicle would drop suddenly to a considerable depth. A rain had filled the wagon tracks and depressions with water so as to leave the defects in the place less likely to be observed. Plaintiff and a companion were driving along in an ordinary trot, when...