Spalding v. City of Edina

• Decision Date: 19 January 1904
• Citation: 78 S.W. 302,104 Mo. App. 45
• Parties: SPALDING v. CITY OF EDINA.
• Court: Missouri Court of Appeals

78 S.W. 302

104 Mo. App. 45

SPALDING v. CITY OF EDINA.

Court of Appeals at St. Louis, Missouri.

January 19, 1904.

NEW TRIAL—NEWLY DISCOVERED EVIDENCE— HEARSAY—APPEAL.

1. On a motion by defendant for a new trial on the ground of newly discovered evidence, in an action for injuries, affidavits of conversations with plaintiff's husband as to her physical condition before the injury should be disregarded as hearsay.

2. Where the evidence was conflicting in an action for injuries, the court's action in setting aside a verdict for plaintiff as against the weight of evidence is not reviewable on appeal.

Appeal from Circuit Court, Knox County; E. R. McKee, Judge.

Action by Ellen C. Spalding against the city of Edina. From an order setting aside a verdict in favor of plaintiff, and granting a new trial, she appeals. Affirmed.

C. R. Fowler and L. F. Cottey, for appellant. F. J. O'Reilly, C. D. Stewart, and G. R. Balthrope, for respondent.

BLAND, P. J.

The suit is to recover damages alleged in the petition to have resulted from a fall by plaintiff, caused by a defective sidewalk negligently maintained on the side of one of its streets by the defendant city. The answer was a general denial and a plea of contributory negligence. The verdict was for the plaintiff, which, on motion of defendant, the court set aside and awarded a new trial, assigning as reasons for its action, first, "on account of newly discovered evidence since the trial"; and, second, "on the further ground that the verdict is against the greater weight of the evidence in the cause." From the order setting aside the verdict and granting a new trial, plaintiff duly appealed.

The evidence is voluminous, and we will content ourselves with a brief statement of what we find it tends to prove. For plaintiff it tends to prove that on the night of October 17, 1900, she and her husband were walking side by side on the east side of Main street, between Jackson and Smallwood streets, in the defendant city, when her husband stepped on the end of a loose board in the sidewalk, causing it to fly up, and plaintiff, in the act of stepping, caught her foot under the board, and was thrown forward, falling on the sidewalk with such force as to knock her senseless for the time being; that, after recovering from the immediate shock caused by the fall, with the aid of her husband, she walked to her home (a short distance). She testified that the fall caused her such great pain that she had to take morphine before she could sleep; that since the fall, and down to the day of the trial, she had suffered almost continuously from severe pain in her back and in the back of her head; that there is a sore spot between her shoulders from which the pain seems to start, and then runs into the back of her head like wires; that at times these pains shoot down her spine causing a heavy sensation in her lower limbs and feet, and that this condition has continually grown worse since her fall; that she is unable to either sit or stand with her back in an erect position; that prior to and up to the day of her fall she was in good health and flesh, was strong, and weighed from 165 to 170 pounds. She further testified that she had frequently passed over the sidewalk before her fall, and knew that some of the boards in it were loose, and that the walk was out of repair, but it was the usual and direct route to and from her home to the town, and she could not have reached her home on the night of her injury without going a considerable distance out of her way; that when she fell she was walking along in the usual way, was looking at the boards in front of her; that the walk was used by other people, and she had no idea but that she could walk over it in safety. She also testified that about 13 months prior to falling on the walk she fell about three or four feet down a stairway, hurting her right shoulder, and that the soreness in her shoulder continued for a few days thereafter; but she suffered no discomfort from the stairway fall, and after its occurrence she never had better health in her life up to the time she fell on the sidewalk. Dr. Jergin testified that plaintiff called on him the last of October or the first of November, 1900, for treatment for the injury she claimed to have received from the fall on the sidewalk; that at the time she complained of intense pain in the back of her neck, head, and shoulder; that he prescribed for her, and continued to do so until the last of November, when he moved away from the town; that he had examined her once since; that there was no change in her condition except in her appearance and loss of flesh; that she was suffering from a nervous affliction known as "localized neuritis," which could be caused by a fall or shock, and that the injury plaintiff complained of could be caused by the fall she had on the sidewalk, and in his judgment the fall did cause the injury. Dr. Jergin's evidence was corroborated by that of Dr. Brown, who treated plaintiff in January, 1901. The sidewalk was constructed by laying three parallel stringers lengthwise on the street and nailing boards crosswise thereon. The evidence for plaintiff is that the stringers in the sidewalk where plaintiff fell were so rotten that they would not hold nails, that some of the boards were loose, and that this defective condition was observable to any one passing over the sidewalk. The evidence further shows that John F. Beal, a member of the board of aldermen of defendant city, frequently passed over the walk before plaintiff's fall on it. Samuel Randolph testified that he was street commissioner of the defendant city for six years prior to May, 1900, and was well acquainted with the sidewalk in question; that it was in bad condition in April, 1900; that in an effort to repair the walk he drove nails in the stringers to fasten down the loose boards, but the stringers were so rotten they would not hold the nails. The evidence also is that the walk was not repaired between the months of April and November, 1900. For the defendant the evidence tends to show that the surface of the walk appeared to be in good condition, and that the stringers were not all rotten, but were partially decayed, and to a casual observer no defects appeared to exist in the sidewalk. Dr. O'Brien testified for defendant that he lived just across the street from plaintiff in the years 1899 and 1900; that in 1899 plaintiff, in a conversation with him, stated that she had spells with her back, and felt feeble; that she had pains through her body, and could not endure what she had endured at other times; that she had fallen...