Peltier v. City of St. Louis

• Decision Date: 29 November 1911
• Citation: 237 Mo. 686,141 S.W. 608
• Parties: PELTIER v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

141 S.W. 608

237 Mo. 686

PELTIER v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

1. MUNICIPAL CORPORATIONS (§ 821)—INJURIES TO TRAVELERS ON DEFECTIVE STREETS —EXISTENCE OF PUBLIC STREETS—EVIDENCE.

Where, in an action for injuries to a traveler on a defective street, an ordinance introduced in evidence recognized the existence of the street as a public street, and oral testimony showed that the street had been extensively traveled by the public for almost 50 years, and there was no evidence of any consequence to the contrary, the court must rule, as a matter of law, that the street was a public street of the city.

2. APPEAL AND ERROR (§ 1062)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where, in an action for injuries to a traveler on a defective street, the court, under the evidence, should have stated to the jury that the street was a public street of the city, error in instructions submitting the question whether the street was a public street was not prejudicial to the city.

3. MUNICIPAL CORPORATIONS (§ 822) — DEFECTS IN STREET—INSTRUCTIONS.

Where, in an action for injuries to a traveler on a defective street, the evidence showed but a single defect consisting of a hole in the street, as alleged in the petition, and that the traveler was injured in consequence thereof, an instruction that, if the jury believed that the street near its intersection with another street at the point mentioned in the evidence was a public street and was in an unsafe condition for travel thereon, the jury should find for the plaintiff, was not objectionable as authorizing a finding for plaintiff on the jury finding that the street was in a dangerous condition at any other point than the one mentioned in the petition.

4. DAMAGES (§ 216)—PERSONAL INJURIES— EVIDENCE.

Where, in an action for personal injuries consisting of the fracture of plaintiff's arms, the evidence showed the payment to one physician of a substantial sum and of the payment of a substantial sum for nurse hire, and that another physician who had treated her had presented no bill for his services, and that she had not required very much medicine, except at the time she was taken with blood poison, the court properly permitted the jury in fixing the verdict to consider any expenses incurred for medicine, medical attention, and nursing.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Josephine Peltier against the City of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

The respondent brought this suit in the circuit court of the city of St. Louis to recover $10,000 against said city, as damages for personal injuries sustained by her while driving along one of the streets thereof, through the alleged negligence of the city, by permitting said street to become and remain in an unsafe and dangerous condition to persons driving thereon. The facts of the case are practically undisputed, except as will be hereafter noted, and are substantially as stated by counsel for respondent, namely: "The plaintiff, whose age was 45 at the time of the trial of the case, was on June 9, 1904, on her way home between 9 and 10 o'clock at night, driving a horse attached to a small spring wagon on Euclid avenue in the city of St. Louis, Mo., crossing the Wabash Bridge and passing on about 200 feet to the terminus of Euclid avenue where it meets and merges into Kingshighway boulevard, which runs due and straight south beyond the said Euclid avenue. The respondent, after arriving about 10 feet from the paved end of Euclid avenue and on Kingshighway boulevard, her horse going on a trot, stepped into a hole or deep depression in the street, caused by the abrasion and wearing of heavy teams, vehicles, mud, and rain on said Kingshighway boulevard, and the forewheel of her vehicle entered into it with such suddenness and force as to throw her out over the horse's back onto the ground and broke her right arm and left arm in two places, causing her much suffering and pain and rendering the said limbs almost useless. While the plaintiff was going south on Euclid avenue and on Kingshighway boulevard, a certain work car with more noise than other cars closely followed her and stopped when she was thrown out, and its motorman and conductor ran to her assistance, picked her up, and placed her on the grass upon a mattress she had in the wagon, where she remained until half past...