Pierce v. Inhabitants of Town of Lutesville

• Citation: 25 Mo.App. 317
• Parties: ZACHARY T. PIERCE, Respondent, v. INHABITANTS OF THE TOWN OF LUTESVILLE, Appellant.
• Decision Date: 05 April 1887
• Court: Missouri Court of Appeals

25 Mo.App. 317

ZACHARY T. PIERCE, Respondent, v. INHABITANTS OF THE TOWN OF LUTESVILLE, Appellant.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the Bollinger County Circuit Court, JAMES D. FOX, Judge.

Affirmed.

CONRAD & SMITH, for the appellant: The town of Lutesville was not incorporated until May, 1879, for the order attempting to incorporate it, in July, 1873, and offered in evidence by the plaintiff, is void upon its face, and should have been excluded. 2 Wag. Stat., 1872, sect. 1, p. 1314; Kayser v Inhabitants of Bremer, 16 Mo. 88. The inhabitants of the town of Lutesville are not liable, because there was never any ordinance or resolution by board of trustees authorizing the opening or working of Front street, the building or repairing of any bridge or culvert on Front street, or anywhere in the town. Stewart v. City of Clinton, 79 Mo. 603; Werth v. City of Springfield, 22 Mo.App 12; Saxton v. City of St. Joseph, 60 Mo. 158. For the non-exercise, or defective exercise, of legislative powers, a municipal corporation is not liable to any one injured thereby. Saxton v. St, Joseph, 60 Mo. 158; Keating v. City of Kansas, 84 Mo. 415; 2 Dillon on Mun. Corp. [3 Ed.] sect. 949, p. 948.

W. K CHANDLER, for the respondent: The town of Lutesville was acting as a municipal corporation under color of law, and its existence as such can not be called in question in a collateral proceeding. St. Louis v. Shields, 62 Mo. 247; Fredericktown v. Fox, 84 Mo. 59. The street was dedicated, platted, accepted, used, and repaired as a street, and thus became a public highway. Rev. Stat. sects. 6569, 6570; Reed v. Edina, 73 Mo. 295; California v. Harwood, 78 Mo. 88; Becker v. St. Charles, 37 Mo. 14. And it was the duty of the town to keep it in a reasonably safe condition for travel. Shearm. & Redf. on Negl. [3 Ed.] sect. 377; Beaudean v. Cape Girardeau, 71 Mo. 392. Municipal corporations are liable for personal injuries caused by their negligence. Bassett v. St. Joseph, 53 Mo. 290. People traveling the street could not go around the bridge, but had to cross it. It was on the most public street in town, and at the most public place on the street--more traveled over than any other in town. It was defendant's bounden duty to keep it in a safe condition of repair, and it can not avoid its duty, because its record shows no ordinance until after the injury to the plaintiff. Welsh v. St. Louis, 73 Mo. 71; Kiley v. Kansas City, 87 Mo. 103; Bassett v. St. Joseph, 53 Mo. 290; Craig v. Sedalia, 63 Mo. 417; Oliver v. Kansas City, 69 Mo. 79; Loewer v. Sedalia, 77 Mo. 431; Russell v. Columbia, 74 Mo. 480; Bowie v. Kansas City, 51 Mo. 454; Smith v. St. Joseph, 45 Mo. 449.

OPINION

THOMPSON J.

This was an action for damages for a personal injury sustained by the plaintiff, in consequence of breaking through a bridge on one of the principal streets of the town of Lutesville, whereby he was thrown from his saddle, dragged a considerable distance by his foot, which was caught in the stirrup, and severely and painfully injured. The record, after a general denial, sets up contributory negligence, consisting of reckless riding over the bridge, and mingles with this allegation the charge that the plaintiff was drunk at the time. A trial before a jury resulted in a verdict and judgment for the plaintiff in the sum of three hundred dollars, from which the defendant prosecutes this appeal. The record is long, and abounds in objections, most of which were frivolous, and were properly overruled. The evidence amply supported the verdict, and the assignment of error, that the court erred in overruling a demurrer to the evidence, may be laid at once out of view. There was evidence tending to show that the injuries received by the plaintiff were of a very painful character, and of a nature likely to be permanent, though as to the permanent character of them, the evidence was conflicting. If we are entitled to consider this verdict by comparison with other verdicts, which are returned by juries and sustained by the courts, in like cases, we are bound to say that the jury appear to have made a moderate award of damages, considering the evidence as to the nature of the injury. Indeed, we feel, on the whole, much less difficulty in dealing with this record than we usually encounter in dealing with the records in similar cases.

I. A serious question is encountered in the ruling of the trial court in allowing the plaintiff, testifying in his own behalf, to give his opinion as to how much he had been damaged by the injury. His answer was, " Five thousand dollars." This ruling was clearly erroneous. It was for the jury, and not for the witness, to give an opinion on the subject, after hearing all the evidence. Railroad v. Kelley, 58 Ga. 107; White v. Stoner, 18 Mo.App. 540, 547; Belch v. Railroad, 18 Mo.App. 80; Winkler v. Railroad, 21 Mo.App. 99; S. C., 21 Mo.App. 109. But, as the plaintiff was of opinion that he had been damaged five times as much as the amount for which he sued, and more than thirty times as much as the amount which he recovered, as the whole evidence indicates that he was not a man of very much standing in the community, and, as the jury returned a moderate award of damages, it does not appear that they would have been likely to have been influenced by such an expression of opinion, or that they were so influenced. We, therefore, think that this error wrought no substantial prejudice to the defendant. If the award of damages had been so large as to create any doubt as to its propriety, our ruling would be different.

II. There is no force in the objection that the plaintiff failed to prove that the defendant had been duly incorporated. The defendant was sued as a corporation, and the allegation that it was a...