McNiell v. City of Cape Girardeau

• Decision Date: 06 December 1916
• Docket Number: No. 17398.,17398.
• Citation: 190 S.W. 327
• Parties: McNIELL v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Supreme Court

190 S.W. 327

McNIELL v. CITY OF CAPE GIRARDEAU.

No. 17398.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from Cape Girardeau Court of Common Pleas; R. G. Raney, Judge.

Action by Nannie McNiell against the City of Cape Girardeau. From an order granting new trial after judgment for defendant, defendant appeals. Affirmed and remanded.

This suit seeks to recover the sum of $10,000 for personal injuries received by plaintiff as a result of being tripped and thrown by a defective board sidewalk in the city of Cape Girardeau. Trial was had in the Cape Girardeau court of common pleas, resulting in a verdict for the defendant. The trial court granted a new trial on the ground that it had committed error in giving defendant's instructions 1 and 2. Thereupon defendant duly perfected an appeal to this court. This is the second appeal. The first appeal will be found reported in 160 Mo. App. 620, 140 S. W. 1196. The evidence tends to show that, as the plaintiff and her husband were walking along a board sidewalk on one of the main residence streets in the city of Cape Girardeau, her husband stepped on the end of a loose board in the walk, causing the other end of the board to fly up and catch plaintiff's foot. This caused plaintiff to trip and fall. As a result of the fall her arm was broken, the side of her body bruised, and her nerves shocked. It appears that the board walk was constructed of 1-inch boards, 10 inches wide and 3 feet long, laid across two parallel wooden girders, to which the boards had originally been nailed; that for two or three months prior to this accident some of the boards were loose. The ends of the boards projected out over the girders, about 8 inches. Plaintiff was 33 years old, and frequently used this sidewalk in going to and from her meals at a nearby boarding house. She testified that Dr. Patton, the mayor of Cape Girardeau at the time of the accident, was called to give her medical treatment. On their way to the hospital, shortly after the accident, Dr. Patton told her that:

"He knew it was a bad walk, and that he was very sorry that it occurred, and said if he had been in the city, he would have attended to it, but was out of the city."

On cross-examination, plaintiff testified:

"I know there were lots of loose boards there. I went over the same board going to dinner, and went over the same board going to breakfast and going back the same morning. I don't just remember whether I passed over the same board the day before or not; possibly I did. I didn't consider or think about the condition of the walk until I was hurt."

She further testified that at the time of the injury, she and her husband were engaged in conversation, and that they were troubled about plaintiff's husband having lost his position with the gas company. Plaintiff offered in evidence the testimony of Dr. Patton, the mayor, which was given at a former trial. The mayor testified that the street and wharf committee and the street commissioner usually made reports to the city council as to the condition of the different sidewalks in town. The mayor was on the streets nearly all the time, day and night, and looked after the condition of the sidewalks a great deal of the time himself, and whenever he would find a bad condition he would have the street commissioner repair the same at once. He further said:

"I don't think I ever ordered the street commissioner to repair that particular part of the sidewalk. I don't remember that I did. I won't say positively."

On cross-examination, in answer to the question as to whether or not he had said to the plaintiff on the way to the hospital that he had been out of the city for some time and had not given the matter his attention, and that otherwise he would have compelled the street commissioner to keep the sidewalk in better condition, said:

"No, sir; I don't remember anything of the kind. Don't know that I knew the sidewalk was out of condition. I might have said so. * * * I might have said it if I had known it, and might have said I was sorry, but never said or indicated that I knew the sidewalk was out of condition."

The evidence upon the part of the defendant tended to show that this portion of the sidewalk had been fully repaired about a year before the...