Norton v. The City of Moberly

• Decision Date: 15 June 1885
• Parties: J. E. NORTON, Respondent, v. THE CITY OF MOBERLY, Appellant.
• Court: Kansas Court of Appeals

18 Mo.App. 457

J. E. NORTON, Respondent, v. THE CITY OF MOBERLY, Appellant.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Boone Circuit Court, HON. GEO. H. BURCKHARTT, J.

Affirmed.

The facts sufficiently appear in the opinion of the court.

WILLIAM B. SANFORD, for the appellant.

I. The court erred in refusing the instructions asked for by defendant. In civil cases the plaintiff must prove his case by a preponderance of evidence. Greenleaf on Evidence, sect 13 (13th Ed). And in actions for damages for negligence, the burden of proof, i. e., preponderance of evidence is on the plaintiff. Greenleaf on Evidence, sect. 74 (13th Ed); Callahan v. Warne, 40 Mo. 135; Smith v. R R., 37 Mo. 287; Bolland v. R. R., 36 Mo. 491; Lane v. Combie, 12 Pick. 177; 58 Mo. 386; 66 Mo. 346; 65 Mo. 441.

II. The court erred in overruling motion for new trial. In order to liability of a city for injuries to persons on its streets, two things must concur. (1) That the street was out of repair by the city's negligence. (2) That plaintiff, at time of injury, was using ordinary care. Bassett v. St. Jo., 53 Mo. 302; 63 Mo. 419; 45 Mo. 449; 16 Pick. 189; 54 Mo. 598. There was little or no evidence that the city knew of the defective condition of the sidewalk, but on the contrary there was evidence that it was in good repair. The verdict, supported by little or no evidence, should be set aside. 33 Mo. 565; 35 Mo. 412.

III. The court erred in excluding that part of the deposition of Dr. Weems (stating information derived from patient as to how he got his ankle hurt). The case of Gartside v. Insurance Company does not apply here. In order to exclude the testimony of a physician under the statute (sect. 4017), two things must concur. (1) The information must have been obtained from the patient either orally or by examination; and, (2) The information must have been necessary to enable him to prescribe. Such concurrence did not exist in this case.

No brief on file for the respondent.

OPINION

ELLISON J.

This is an action for damages on account of personal injury received by plaintiff on one of the sidewalks in the city of Moberly. On a change of venue to Boone county a trial was had resulting in a verdict for plaintiff for one hundred and fifty dollars. After an unsuccessful motion for new trial defendant appeals, alleging as error on the part of the circuit court the refusal of two instructions offered; the overruling its motion for new trial, for the reason the verdict was against the evidence, and in striking out a portion of the deposition of plaintiff's physician.

The instructions given by the court for plaintiff and defendant taken together amply cover all the issues in the case, and without saying anything for or against those refused as being correct propositions, it is sufficient, and has been repeatedly so held, that when a case is once properly covered by the court's declarations of law, the refusal of others, though correct in themselves, is not error.

As to the second point, we deem it sufficient to say that we will not weigh the evidence to see whether the jury, in our opinion, came to a correct conclusion on the facts. There is nothing to show us or lead us to believe there was any passion, partiality, or prejudice, on the part of the...