Oliver v. City of Vandalia

• Decision Date: 13 June 1930
• Docket Number: No. 21137.,21137.
• Citation: 28 S.W.2d 1044
• Parties: OLIVER v. CITY OF VANDALIA et al.
• Court: Missouri Court of Appeals

28 S.W.2d 1044

OLIVER v. CITY OF VANDALIA et al.

No. 21137.

St. Louis Court of Appeals. Missouri.

June 13, 1930.

Rehearing Denied June 24, 1930.

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be officially published."

Action by Myrtle M. Oliver against the City of Vandalia and another. From an adverse judgment, the named defendant appeals.

Affirmed.

E. L. Alford, of Perry, Barrow & Barrow, of Vandalia, and Rodgers & Buffington, of Mexico, Mo., for appellant.

A. C. Whitson, of Mexico, Mo., for respondent.

HAID, P. J.

Plaintiff recovered a judgment for $500 against the city of Vandalia, Mo., from which the latter has appealed.

The suit was instituted against the city of Vandalia and R. L. Alford. who was the owner of the building to which the awning hereinafter referred to was attached, but the court directed a verdict in favor of the latter.

The record discloses that the city of Vandalia is a city of the fourth class; that D street is a public thoroughfare running north and south through said city; that R. L. Alford owned a two-story brick building on the east side thereof, the store on the first floor of which was occupied for many years by a Mr. Keith, who conducted a jewelry business; that in the latter part of the summer of 1926 the tenant, Mr. Keith, had an awning placed above the windows of the first story which consisted of a gas pipe four inches in diameter, twenty-two feet long, extending north and south across the front of the building above the first story windows. The upper edge of the cloth or canvas consisted of a hem eighteen inches wide and the double thickness of the cloth thus made by the hem was wound around and securely fastened to the four-inch gas pipe by iron bolts. The outer edge of the canvas when lowered was seven or eight feet from the building, about that distance above the sidewalk and fastened to a dressed piece of timber about two inches wide, four inches thick, and twenty-two feet long. Small iron rods at each end of the canvas ran from the building to the piece of timber attached to the outer edge, and the two ends or short edges of the awning canvas were fastened to said rods.

The awning was raised and lowered by a mechanical device, consisting of a pinion at one end of the four-inch gas pipe from which a square rod extended down to the winding box, three or four feet above the sidewalk, and there attached to another pinion which was turned by a crank inserted into the winding box and connecting to the pinion therein.

The awning was raised and lowered by turning the crank. When the awning was raised the mechanical device in the winding box was locked by a pin which held the awning so it could not come down until the device was unlocked by shoving the pin out with the crank.

On June 11, 1928, the awning was rolled up. The plaintiff was walking north on the sidewalk (which was 15 feet wide) in front of the Alford building. As she approached and was passing that building the awning unrolled and came down, tore loose from the south end of the four-inch gas pipe, and fell to the sidewalk, and plaintiff was caught and hit by the falling awning and forced down on the sidewalk, and received the injuries of which she complained. Further facts appear in the discussion of the points raised by appellant.

The first error assigned is that the court erred in permitting Dr. Righter, who treated plaintiff, to express his opinion as an expert that plaintiff's injuries were permanent. The record discloses that the witness was interrogated by the defendant as to his qualifications, and since the qualification of such witness is a question for the court (Schrodt v. St. Joseph, 109 Mo. App. loc. cit. 630, 83 S. W. 543), and the court having favorably passed upon his qualification, it was entirely proper for him to express his opinion as to the probable effect of the injuries sustained (Gaty v. United Railways Co., [Mo. Sup.] 251 S. W. loc. cit. 66, and cases cited).

The second contention made is that the court erred in instructing the jury that the plaintiff was not guilty of any negligence contributing to her injury. We are unable to agree to this contention. The evidence discloses that she was proceeding along the walk as she had the right to do, without any reason to suspect that there was danger from above, and she was justified in assuming, in the absence of a warning, that she could safely use the sidewalk. Franke v. City of St. Louis, 110 Mo. loc. cit. 528, 19 S. W. 938; Lundy v. Sedalia, 162 Mo. App. loc. cit. 220, 144 S. W. 889; Loth v. Columbia Theatre Co., 197 Mo. 349, 350, 94 S. W. 847. There was evidence of one witness to the effect that there was a strong wind blowing and that it caused the raised awning to blow back and forth, away from and against the building; but there was nothing in the evidence to warrant a finding that plaintiff was chargeable with contributory negligence. While, perhaps, it was unnecessary to give this instruction, yet, since defendant pleaded contributory negligence, there could be no valid objection to the court advising the jury concerning that allegation.

The third contention made is that the court erred in giving that part of plaintiff's instruction C telling the jury that they might allow her "for any loss of earnings of her labor she has sustained or will hereafter sustain by reason of her injuries and directly caused thereby, and for any expenses necessarily incurred for medicine, medical service, treatments and adjustments which the jury may find from the evidence plaintiff has incurred," etc.

The first objection to this instruction is based on the fact that there was no allegation in the petition as to loss of earnings. It appears, however, that plaintiff testified without objection, that before her injury she was able to do, not only her household work, but that she was also able to do sewing for others and kept boarders; that she was able to earn six or eight dollars a week for sewing. In this situation, after judgment, we must consider the petition as amended to conform to the proofs (Reidle v. Scott [Mo. App.] 296 S. W. loc. cit. 263; Whitehead v. Koberman [Mo. App.] 299 S. W. loc. cit. 124, and cases cited), and therefore this objection must be ruled against the defendant.

The second objection to this instruction is that there is no allegation in the petition nor any proof as to the amount expended for medical services, medicines, etc. The instruction, it will be observed, specifically told the jury that they might allow any such expenses as they found from the evidence that plaintiff had incurred. While there was no evidence as to any amount having been expended for which an allowance could be made in the verdict,...