Spaulding v. City of Edina

• Decision Date: 05 November 1906
• Citation: 122 Mo. App. 65,97 S.W. 545
• Parties: SPAULDING v. CITY OF EDINA.
• Court: Missouri Court of Appeals

97 S.W. 545

122 Mo. App. 65

SPAULDING v. CITY OF EDINA.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied November 19, 1906.

1. MUNICIPAL CORPORATIONS — INJURIES TO PEDESTRIANS — DEFECTIVE SIDEWALKS — PLEADING.

Where the petition against a city for injuries to plaintiff by a defect in a sidewalk alleged that the defect was immediately north of a gate opening into the street from a certain residence, it sufficiently designated the locus in quo, though it was proved that the walk was sound for a distance of three feet north of the gate.

2. EVIDENCE—EXPERTS—COMPETENCY.

Where a physician testified that he was a graduate of a medical school and had practiced medicine and surgery for nine years, whether he was competent to testify as an expert on nervous diseases was for the determination of the trial court, though the witness stated that he had given more attention to surgery and did not claim to be an expert on nervous diseases.

3. SAME—EXPERT OPINIONS—QUESTIONS.

Where, in an action against a city for injuries to plaintiff by a fall on a defective city sidewalk, it was shown that plaintiff had previously fallen on the steps of her home, a question asked of a medical expert as to whether he would attribute plaintiff's injuries to the fall on the steps or the fall on the sidewalk was objectionable as invading the province of the jury.

4. APPEAL — OBJECTIONS — WAIVER — NEW TRIAL.

Error in overruling an objection to a question is waived by the party's failure to raise the same in his motion for a new trial.

5. EVIDENCE—OPINION OF WITNESS—EXAMINATION —QUESTIONS.

Where, in an action for injuries to a pedestrian by an alleged defect in a city sidewalk, the condition of the walk was an issue, questions asked of certain witnesses as to whether the walk "was in a good condition," or "was a good sidewalk," were properly disallowed as invading the province of the jury.

6. TRIAL—OBJECTIONS TO EVIDENCE—NECESSITY.

Where proposed evidence was not admissible for any purpose, it was not necessary to give a reason for an objection to its competency.

7. APPEAL—EVIDENCE—OBJECTIONS NOT MADE AT TRIAL.

Objections to the admission of evidence not made at the trial will not be considered on appeal.

8. TRIAL—EVIDENCE—OBJECTIONS.

An objection to the admission of a city ordinance failing to point out the parts of the ordinance deemed inadmissible was ineffective.

9. PLEADING—ALLEGATIONS IN ALTERNATIVE —NOTICE — MUNICIPAL CORPORATIONS — INJURIES TO PEDESTRIANS — DEFECTIVE SIDEWALK.

Where a petition, in an action for injuries to a pedestrian by a defect in a city sidewalk, alleged that the condition of the walk and the defects therein were known to defendant, or by the exercise of ordinary care might have been known to it, in time to have been repaired before the injury occurred, this was not objectionable as an allegation of notice because it was stated in the alternative.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Ellen G. Spaulding against the city of Edina. From a judgment for plaintiff, defendant appeals. Affirmed.

F. H. McCullough and O. D. Jones, for appellant. L. F. Cotty, C. R. Fowler and Ellison & Campbell, for respondent.

BROADDUS, P. J.

This cause was originally pending in the circuit court of Knox county, where on trial the plaintiff recovered a verdict which the court set aside on defendant's motion. The plaintiff appealed from the action of the court in setting aside the verdict in her favor to the St. Louis Court of Appeals. The case is reported in 104 Mo. App. 45, 78 S. W. 302. As the decision on the said appeal does not affect any question now before us, no reference is necessary to what was there decided. After the case was remanded, the venue was changed to Adair county, another trial had, and the plaintiff again obtained a judgment, from which defendant appealed to this court.

It is alleged in plaintiff's petition that at night on or about the 11th day of October, 1900, in consequence of a defective sidewalk negligently maintained by defendant on one of its principal streets, she was, while walking over it, thrown down and severely injured. She alleges that while passing over said sidewalk on the east side of Main street in the defendant city, at a point immediately north of the gate which opens onto said sidewalk from the residence of P. A. Lycan, her husband stepped on the end of a loose board in the sidewalk, which caused it to fly up, and she, while in the act of stepping, caught her foot under the board and was thus thrown down. The petition alleges that the sidewalk in question was originally constructed of stringers running north and south with planks about four feet long nailed crosswise over the stringers, and which projected on each side about four inches over them; that at the date in question, and for a long time prior thereto, the stringers mentioned had become decayed and rotten, so that they would not hold the nails by which the planks were attached; that in consequence of this condition many of the planks in the walk were loose, some misplaced, and the general condition of the walk was dangerous and unsafe for travel; and that its condition and defects were known to the defendant, or by the exercise of ordinary care and diligence might have been known to the defendant, in time to have had the same repaired before the alleged injury to plaintiff. The defendant answered with a general denial and alleged contributory negligence upon the part of the plaintiff. The evidence upon the part of plaintiff tended to support all the allegations of her petition. The defendant's evidence was to the effect that the walk was in a reasonably safe condition, and that, if there was any defect in the same, the defendant had no notice of such defect. It produced evidence tending to show that plaintiff was familiar with its condition, and that if she was injured it...