Sharp v. City of Carthage
| Decision Date | 11 April 1928 |
| Docket Number | No. 26402.,26402. |
| Citation | 5 S.W.2d 6 |
| Parties | DELLA A. SHARP, a Person of Unsound Mind, By JOHN A. MARRS, Guardian of Her Person and Curator of Her Estate, Appellant, v. CITY OF CARTHAGE. |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. — Hon. S.W. Bates, Judge.
AFFIRMED.
George V. Farris, A.E. Spencer, Hugh Dabbs and J.D. Harris for appellant.
(1) The evidence in this case clearly shows, and it virtually stands admitted, that the hole in the pavement was a dangerous obstruction therein and had existed many years without attention on the part of the city or effort to repair it, and that the city had actual notice thereof. The evidence shows that the plaintiff was in the exercise of ordinary care when she undertook to cross the street at the place in question, that she took the precaution to look at the pavement before using the same and that it appeared smooth, but with some rubbish and paper collections upon it, and that she did not know of the presence or existence of the hole, the same being concealed from her view by the accumulations on the street. It stands admitted in this record that the plaintiff fell by stepping on the edge of the hole and was severely injured. The verdict of the jury in the face of this record cannot be explained on any other ground, except a palpable miscarriage of justice, and that the verdict is against the weight of the evidence and all of the evidence. And it is submitted that the trial court failed to exercise that sound discretion vested in it to grant a new trial in this case, on the ground that the verdict was against the weight of the evidence. (2) The defendant's Instruction F is clearly erroneous. This instruction in effect told the jury that the plaintiff's injury caused by falling in the hole in the pavement is no evidence whatever of negligence upon the part of the city. While the instruction in the first part of it does use words, "is no evidence of itself," yet this first part of the instruction is followed by the statement, "But, on the contrary, the plaintiff must, by the evidence, show that the defendant was guilty of negligence, as defined in these instructions." The jury could come to no other conclusion by reading the last-quoted sentence of the instruction that the fact of the plaintiff receiving her injury caused by stepping on the edge of the hole and falling, could not be considered by them as a part of the fact proving negligence, just as much so as if the instruction had left out in the first part of it the qualifying words, "of itself." What else could the defendant have meant by the statement, "But, on the contrary, the plaintiff must, by the evidence, show that the defendant was guilty of negligence." Clearly that is what the instruction means, and evidently the jury came to that conclusion. The jury could well conclude that they should not consider the injury to the plaintiff in determining the matter of the defendant's negligence. That they could not consider the character and extent of the injury to the plaintiff in determining the matter of the defendant's negligence. Yet the fall and the character and the extent of the injury would be evidence bearing directly on the question of the degree of danger of the defect in the street. The jury could well conclude from this instruction that the court meant, "by the evidence," that the jury would have to exclude from their consideration the question of the plaintiff's injury and the extent of her injury in determining the defendant's negligence, and that they would have to be able to find evidence elsewhere and independent of these facts and in exclusion thereof, which, of itself, would warrant the jury in saying the defendant was guilty of negligence. And the court, in further telling the jury in this instruction that, "the plaintiff must, by the evidence, show that the defendant was guilty of negligence," would impress the jury with the thought that the plaintiff must have direct evidence by word of some witness or witnesses that the defendant was guilty of negligence, at least, the instruction bears the impression that the proof must be of such probative character as to remove any doubt to the contrary, and bears too much of the thought that the defendant must be convicted of negligence by a standard of proof of such probative force as to well satisfy the jury of such guilt. The instruction is not saved from this criticism by the last clause, stating, "The burden of proof is upon the plaintiff to establish such negligence by the greater weight of the evidence." That sentence in the instruction, "But, on the contrary, the plaintiff must, by the evidence, show that the defendant is guilty of negligence, as defined in these instructions," is wholly unnecessary and unwarranted in the instruction, and carries this instruction far beyond anything that was said in justification of the instruction discussed in the case of Coffee v. City of Carthage, 186 Mo. 484. The instruction has been condemned by this court in commenting upon an instruction not as vicious as the one here under consideration. Orris v. Chicago R.I. & P. Ry. Co., 214 S.W. 126. See also Walker v. St. Joseph, 231 S.W. 65; Myers v. City of Independence, 189 S.W. 823. (3) Furthermore, Instruction F is erroneous in misplacing the burden of proof on the plaintiff as to the issues of contributory negligence raised in the defendant's answer and submitted by the jury in its Instruction D. In that respect the burden of proof was on the defendant. The question of burden of proof should not have been mingled with other matters preceding it in Instruction F. It all the more emphasizes the erroneous character of Instruction F, as discussed under the preceding point. (4) And Instruction F is further erroneous in this, that it says, "But, on the contrary, plaintiff must, by the evidence, show that the defendant was guilty of negligence, as defined in these instructions." The fact is the court did nowhere in the instructions define negligence, and the defendant did not ask the court to give such an instruction and no such instruction was given. The result was that the jury was left to search in vain for such definition. This reference to definition of negligence in the instructions, it would seem, clearly renders the instruction erroneous. It left the jury groping as to what to do. (5) Instruction E given for the defendant is erroneous, in that it places the burden of proof as to the issue of contributory negligence on the plaintiff. The issue of contributory negligence was brought in the case by the defendant's answer and submitted to the jury under Instruction D. It was therefore highly prejudicial to the plaintiff. While the instruction does not specifically mention contributory negligence, yet it does say plaintiff "must establish, by a preponderance of the evidence, the facts necessary to a verdict in her favor under these instructions, that is to say, by the greater weight of all the credible evidence in the case." This instruction by its very terms not only required the plaintiff to prove those things essential to her recovery in the case, but to exonerate herself of any acts of contributory negligence. This the law does not require the plaintiff to do. The instruction should have clearly and expressly placed the burden of proof on the plaintiff as to the facts necessary for a recovery in her favor, and should have at the same time specifically told the jury that the burden of proof was on the defendant to show want of ordinary care on plaintiff's part. Hickman v. Union E.L. & P. Co., 226 S.W. 576; Regan v. St. Louis Transit Co., 180 Mo. 127; Meiley v. Railroad, 215 Mo. 588. It is also submitted that this instruction is erroneous for the further reason that it unduly emphasized the scope and amount of evidence by which plaintiff would have to make out her case by saying this burden must be sustained by the greater weight of all the credible evidence in the case. Darrington v. Poplar Bluff, 186 S.W. 564. (6) Instruction D is erroneous in that it assumes that the plaintiff was careless and negligent in proceeding to cross the street and in failing to use ordinary care in paying attention to where she was walking, and that plaintiff negligently failed to discover the hole and stepped into the same, and in that respect it is an undue and unnecessary and prejudicial comment upon the evidence, singling out special parts of the testimony and directing special attention thereto. Richardson v. Railroad, 166 Mo. App. 162; Zumwalt v. Railroad Co., 266 S.W. 726. (7) It is not negligence for a pedestrian to cross a street at a place other than a regular crossing provided for pedestrians. Plummer v. City of Milan, 79 Mo. App. 439.
S.I. Barton and Frank R. Birkhead for respondent.
(1) The defendant throughout the trial maintained that the street in question was in a reasonably safe condition and further maintained that plaintiff's fall was the result of her own carelessness. The testimony being conflicting, it became a question for the jury under the instructions of the court. The appellant was given a fair trial. The trial court, in its discretion, denied a new trial, and therefore the verdict and judgment is final. Where the evidence upon material points is conflicting, or where different conclusions may be drawn from the evidence, the question of negligence and contributory negligence are for the jury. Mauerman v. Siemerts, 71 Mo. 101; Hulin v. Railway Co., 92 Mo. 440; Kinney v. Springfield, 35 Mo. App. 97; Davis v. Ry. Co., 46 Mo. App. 180; Church v. Railroad Co., 119 Mo. 203; Lamb v. Mo. Pac. Ry. Co., 147 Mo. 174; Dowell v. Guthrie, 116 Mo. 646; Wentworth v. Duffy, 68 Mo. App. 513; Oborn v. Nelson, 141 Mo. App. 428; Vaughan v. Brewing Co., 152 Mo. App. 48; Heine v. Railroad Co., 144 Mo. App. 443; Meng v. Ry. Co., 108 Mo. App. 553; Dale v. Smith, 185 S.W. 1183. This accident happened in broad daylight on a street in front of the...
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