Neff v. City of Cameron

• Citation: 213 Mo. 350,111 S.W. 1139
• Parties: NEFF v. CITY OF CAMERON.
• Decision Date: 03 July 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 1139

213 Mo. 350

NEFF v. CITY OF CAMERON.

Supreme Court of Missouri. Division No. 1.

July 3, 1908.

1. MUNICIPAL CORPORATIONS — DEFECTIVE STREETS—INJURIES—EXISTENCE OF STREET.

In an action for injuries caused by a defective sidewalk, it appeared that the street had not only been platted, but that it had been improved and treated as a public street of the city. Public work had been done on it from year to year, and it was in use as a public street for a long time before the accident. The sidewalk in question had been there for several years, and the city had assumed jurisdiction to cause it to be repaired and to reconstruct it, though for several blocks there were few houses. Held, that a public street existed.

2. NEGLIGENCE—IMPUTED NEGLIGENCE—PARENT AND CHILD.

Negligence of the parent cannot be imputed to an infant who sues in its own right for a wrong done.

3. TRIAL — INSTRUCTIONS — UNDUE PROMINENT OF PARTICULAR MATTERS.

In an action for injuries to an infant caused by a defective sidewalk, where counsel for defendant in his argument exploited as a defense the failure of plaintiff's parents to complain to the city of the condition of the walk, an instruction that though plaintiff's father or mother knew that the sidewalk in question was not reasonably safe, yet that fact was no defense, was not improper, though in the absence of such argument the instruction might be bad in singling out and giving undue prominence to one or two facts and as being argumentative.

4. SAME — CONFUSED INSTRUCTIONS — SAME WORD IN DIFFERENT SENSES —INJURY.

In an action for injuries, an instruction that if at the time plaintiff received such injuries she had a tubercular tendency in her system, and such injury caused the tubercular tendency to develop, "and thereby aggravated said injury to her left knee and leg, then defendant is responsible for any injury or damage arising or accruing to plaintiff on account of such tubercular development so caused by and the natural and proximate result of such injury," was confusing, in that it used the word "injury" in different senses.

5. DAMAGES—EXCESSIVE AMOUNT — PERSONAL INJURIES.

In an action against a city of the third class for injuries to plaintiff, who was two years old, caused by a defective sidewalk, it appeared that a loose board in the walk struck plaintiff just below the kneecap, causing apparently a slight, but painful bruise. After some months, radical bone trouble developed in her knee, surgeons were called, and operations were performed at intervals, removing portions of diseased bone. The testimony did not satisfactorily show that the injury might not be so far overcome by plaintiff's growth and development as to leave her some substantial use of her limb, or that her earning capacity when she became an adult would be entirely destroyed. Held, that a verdict for $10,000 must be considered excessive, in view of prejudicial incidents at the trial that might well have inflamed the jury, causing it to return a swollen verdict.

6. EVIDENCE — ADMISSIONS OF PARENT AND NEXT FRIEND.

In an action by an infant for personal injuries, admissions by plaintiff's mother, who was not a party to the suit, and by her father and next friend, made out of court, were not admissible against plaintiff.

7. NEW TRIAL—NEW EVIDENCE—DILIGENCE—FAILURE TO CROSS-EXAMINE.

A motion for a new trial on the ground of newly discovered evidence was properly overruled, where the evidence was alleged admissions of a witness which would be admissible only as contradicting his testimony at the trial, and where counsel had been forwarned concerning the matter of the admissions and failed to cross-examine the witness.

8. TRIAL — ARGUMENT OF COUNSEL — STATMENTS NOT SUSTAINED BY EVIDENCE.

In an action against a city of the third class, where plaintiff's counsel in argument to the jury stated that defendant denied that it was a city of the third class, when the answer expressly admitted such fact, it was the duty of the court to correct counsel, and it was error to merely rule that "the answer is in evidence."

9. SAME.

Plaintiff's counsel in argument to the jury stated "the plaintiff didn't bring this case to A. county. * * * They thought they would drag us up here and put us to additional expense." The application for change of venue was not read to the jury, and the testimony merely showed that defendant had taken a change of venue. There might have been more changes of venue than one. Held, that such argument was prejudicial, and objections thereto should have been sustained.

10. SAME — COMMENTS ON OBJECTIONS AND RULINGS.

A remark by plaintiff's counsel in argument to the jury, that "You gentlemen notice that for the last few days Mr. E. (defendant's counsel) has been objecting and has been overruled," was unfair argument, as calling attention of the jurors to rulings by the court with which they had no concern.

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by Joy Neff by her next friend, Edwin Neff, against the city of Cameron. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

F. B. Ellis, J. A. Clark, and J. A. Saunders, for appellant. Pross T. Cross and R. H. Musser, for respondent.

LAMM, J.

In an action for $25,000 damages grounded on negligence, plaintiff recovered $10,000, and defendant city appeals. Cameron is a city of the third class with a north and south street named Orange. On the east side of Orange was a four-foot wooden sidewalk made of stringers laid lengthwise and boards nailed crosswise. On April 15, 1903, Joy Neff was about 2 years old. On that day, according to plaintiff's evidence, while led by her mother, she was walking on this sidewalk. The mother stepped on a loose board. It flew up and struck her on the left leg just below the kneecap, causing (apparently) a slight but painful bruise. The child suffering, that evening a doctor was called who recommended a hot compress and rest. She received no more personal medical or surgical attention for several months, but her leg was treated by domestic remedies, compresses, liniments, etc., and she did not do well. She was kept in bed, and, when up, limped and complained. Eventually, in the course of some months, radical bone trouble developed in her knee. Surgeons were called and more than one surgical operation was performed at intervals, removing portions of diseased bone. On the 17th of December, 1904, she brought suit by her father as next friend, her petition alleging she was unable to use her left leg, will be a cripple for her natural life, that her ability to earn a livelihood was permanently destroyed, that her general health and nervous system were permanently injured, her leg was shrunken and wasted away, etc., and she was disfigured for life; that said sidewalk, at the point and time in question, had been allowed through defendant's negligence to become old and rotten, the nails rusted and broken, the boards loose from the stringers, etc.; that such dangerous conditions were long known to the city or would have been known by the exercise of reasonable care, but were negligently allowed to remain after the city had time to do repairs, etc.

The answer admits defendant is a city of the third class and puts in issue the other averments of the petition. It next invokes the doctrine of "imputed negligence" as a defense, alleging that if the child was injured it was not on account of defendant's fault, but on account of the negligence of her parents who had charge of her at the time and who permitted her to walk upon the sidewalk, which sidewalk could not be made reasonably safe for a child of so tender years to walk upon with reasonable safety. By way of further defense, it avers that if the child was injured at all it was only slightly injured; that, if the injury afterwards became permanent and serious, it was on account of want of proper treatment by the parents and attending physicians; that the child being incompetent to care for herself, the parents failed to properly care for her or to furnish her competent medical and surgical attendance. In short, that the after-complications arose from the negligence of the parents to the child and of the physician in failing to attend her and give her due surgical treatment after he knew of the character of her injury. The case was taken on defendant's application to Andrew county by a change of venue, where it was tried with the aid of a jury, resulting in the aforesaid verdict.

At the trial it was contended that Orange street was not a public thoroughfare of the city of Cameron. The testimony took a wide range on that issue; for instance: Whether it had ever been platted as a street. Again, whether it was a de facto street through dedication, acceptance, etc. The clear weight of the testimony was that it had not only been platted but that it had been improved and treated as a public street of Cameron in charge of the street commissioner. Public work had been done on it from year to year and it was in use as a public street for a long time before the accident. So, too, the sidewalk in question had been there for several years, and the city had assumed jurisdiction to cause it to be repaired when occasion called and to reconstruct it. True, on one side of the street for a half dozen blocks there were not many houses and that section of Cameron was shown to be sparsely settled, but that phase of the matter only went to show due care to discover and remedy defects. It being manifest that what is due care somewhat shifts with the locality of the street and the use it is put to. On the issue of street or no street, plaintiff made a good case.

Evidence was put in pro and con on the condition of the sidewalk. The details of it are useless for appellate purposes. A case for the jury on the issue of defendant negligently allowing a defective sidewalk to remain for some months before the accident was made out so strongly...