Phelps v. City of Salisbury

• Decision Date: 12 March 1901
• Citation: 61 S.W. 582,161 Mo. 1
• Parties: PHELPS v. CITY OF SALISBURY.
• Court: Missouri Supreme Court

61 S.W. 582

161 Mo. 1

PHELPS v. CITY OF SALISBURY.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

NEGLIGENCE — ISSUES — EVIDENCE OF AGE — INSTRUCTIONS.

1. The giving of an instruction at instance of plaintiff erroneously stating the issue cannot be complained of by defendant; instructions adopting the same theory being given at instance of defendant.

2. There is no conflict as to the quantum of caution and care required of plaintiff to avoid the accident between an instruction that, though he knew of the unsafe and dangerous condition of the sidewalk, verdict should be for him, provided he was at the time of the accident using ordinary prudence and care to avoid it, and one stating that, if he was not using reasonable care, — that is, such care as a person of ordinary prudence would have used under the same circumstances and with the same knowledge, — verdict should be for defendant.

3. An instruction in an action for personal injuries is erroneous in telling the jury in estimating damages to take into consideration plaintiff's age, where there is no evidence thereof, except his personal presence before the jury at the trial.

Appeal from circuit court, Chariton county; O. F. Smith, Special Judge.

Action by J. W. Phelps against the city of Salisbury. Judgment for plaintiff. Defendant appeals. Reversed.

This is an action against defendant city to recover damages for personal injuries sustained by plaintiff while walking along and upon one of its sidewalks. It is predicated upon defendant's alleged negligence in carelessly and negligently constructing that part of the sidewalk where the same is crossed by the Salisbury and Glasgow branch of the Wabash Railroad, in this: that it failed to erect and maintain guards or railings on and along the sides of same where it passes down an embankment and over a ditch of the depth of four feet on the side of said branch railroad; and that by reason of the negligence and carelessness of defendant to properly construct and keep in safe and good condition the sidewalk and railroad crossing, and suffering them to get out of repair, and to become dangerous and unsafe for public travel, by failing to keep the plank of which said sidewalk and railroad crossing were built securely nailed to its foundation timbers, but allowed the same to become loose and insecure, so that the ends thereof would stand above and below the common level of the walk, and carelessly and negligently allowed the nails with which said plank were fastened to work out and up, so that they stood above the surface of the walk, thus rendering same unsafe for public use and travel, for a long time before the accident; and that by reason thereof plaintiff, on or about the 14th day of October, 1894, while passing over that part of said sidewalk, and while using care and caution, caught his foot against the end of one of the loose planks of said walk, and against one of the spikes or nails, which had partly drawn out of same, and was, by reason thereof, thrown down, causing a dislocation of his left knee, resulting in the necessary amputation of that leg, etc. The answer is, first, a general denial. It then alleges that the sidewalk where the accident occurred was at that time, and for a long time previous thereto, in a reasonably good and safe condition; that plaintiff was familiar with it, was accustomed to pass over and upon it daily, and knew its condition; and that he so carelessly and negligently passed over and upon said sidewalk that he slipped thereon and fell, which was the result of his own carelessness and negligence; and that the extent of plaintiff's injury and the amputation of his limb were occasioned by his physical condition prior to receiving the injury, and to his own subsequent carelessness and negligent conduct.

The salient facts are about as follows: At the time of the accident, and for about four years prior thereto, the plaintiff was and had been a citizen of defendant city, and while returning home from church about 8 o'clock on the evening of the 14th of October, 1894, and without fault or negligence upon his part, he struck his right foot against the end of a board of the sidewalk of said crossing, of which it was composed, where the sidewalk and crossing connected, and slipped, and he was precipitated into a ditch under the crossing, and his left leg so badly injured that amputation was a necessary result. At the point where the injury occurred the ends of the sidewalk plank where they had been nailed had become loose, and the walk, in consequence thereof, had settled down, and was at the time an inch and one-half lower than the ends of the plank in the crossing. The sidewalk had been in this condition some two or three months, and plaintiff testified that he had about that time called the mayor of the city's attention to it, as well also as one of the councilmen. The evening upon which the accident occurred was dark, but there was an electric light near by the point of the accident, but an arm of the lamp shaded the place. Plaintiff's injuries were serious, and are permanent.

At the instance of plaintiff, and over the objection and exception of defendant, the court instructed the jury as follows: "(1) For plaintiff the court instructs the jury: That in this case the plaintiff seeks to recover damages for an injury to him resulting in the loss of a leg, alleged to have been received by him on account of the defective and dangerous condition of a sidewalk and its crossings over the Salisbury and Glasgow branch of the Wabash Railroad Co., on the north side of Third street, in said city, and in consequence of its failure to maintain railings along the sides of said crossing where the same passes down the embankment of said railroad, which it was the duty of said defendant city to construct and maintain in a reasonably safe condition for the travel of the public by day or by night. His claim is based on the alleged negligence of defendant in failing to keep said sidewalk in a reasonably safe condition for the use of the public, and on its carelessness and negligence in failing to construct and maintain railings on the sides of said walk where it passes down the railroad embankment over the ditch alongside of the track, and the injury received by plaintiff in consequence of such failures. The defendant city, by its answer, denies the carelessness and negligence charged against it, and the injury, and asserts that the injury, if any, to plaintiff, was received by him as a result of his own carelessness and negligence. (2) You are instructed that it was the duty of defendant city to maintain said sidewalk and crossing over the railway track in a reasonably safe condition for travel by day or by night. If, therefore, you believe from the evidence that the plaintiff received the injury complained of by reason of the carelessness and negligence of the defendant in failing to maintain and keep said sidewalk and railroad crossing in a reasonably safe and proper condition for the public use by day or by night, and without fault or negligence on his part then your verdict must be for the plaintiff. (3) The jury are instructed that if they shall find and believe from the evidence in this case that the sidewalk and crossing down the railroad embankment described in plaintiff's petition were in an unsafe and dangerous condition, and that the defendant or its officers knew, or, by the exercise of reasonable attention, care, and diligence, might have known, the fact, and that they carelessly and negligently failed within a reasonable time to repair and put same in a reasonably safe condition for the use of the public, and that plaintiff was injured in consequence thereof, then their verdict should be for plaintiff, though they further believe that plaintiff knew of the unsafe and dangerous condition of said walk and railroad crossing; provided they shall also believe from the evidence that he was at the time of receiving said injury using ordinary prudence and care on his part to avoid the same. (4) The court instructs the jury that in this case it does not devolve on the plaintiff to prove that he was exercising ordinary care in walking over and upon the walk where he received the injury. The law presumes that he was, and it is a matter of defense for the defendant. The burden is upon the defendant to prove to the reasonable satisfaction of the jury, by the preponderance of the evidence, the defense of contributory negligence set up and pleaded in its answer; and, if it has failed to so prove and satisfy the jury, the...