Stephens v. City of Eldorado Springs

• Decision Date: 18 December 1916
• Docket Number: No. 11981.,11981.
• Citation: 190 S.W. 1004
• Parties: STEPHENS v. CITY OF ELDORADO SPRINGS.
• Court: Missouri Court of Appeals

190 S.W. 1004

STEPHENS v. CITY OF ELDORADO SPRINGS.

No. 11981.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Appeal from Circuit Court, Cass County; Andrew A. Whitsett, Judge.

"Not to be officially published."

Action by W. A. Stephens against the City of Eldorado Springs. Judgment for plaintiff, and defendant appeals. Affirmed.

D. Walker Smith and J. F. Rhodes, both of Eldorado Springs, and T. N. Haynes, of Harrisonville, for appellant. W. M. Bowker, of Nevada, Mo., and J. S. Brierly and W. D. Summers, both of Harrisonville, for respondent.

TRIMBLE, J.

Plaintiff, while walking on defendant's sidewalk, was thrown down and severely injured by reason of a defect therein. He sued the city alleging negligence in failing to keep the sidewalk in a reasonably safe condition. The city answered with a general denial, coupled with a plea of contributory negligence. On a change of venue the case was first sent to St. Clair county, where it was tried, resulting in a judgment for plaintiff, which, on appeal, was reversed by the Springfield Court of Appeals for error committed in the trial, and the cause remanded for a new hearing. Thereupon, another change of venue was awarded, and the case went to Cass county, where the trial now involved was had on substantially the same evidence as before, and resulting again in a verdict and judgment for plaintiff. Defendant has again appealed.

It is very strenuously and ably argued that we should reverse the case on the ground that the plaintiff's own testimony shows contributory negligence so clearly that we should declare it established as matter of law. There is no question as to the sufficiency of the evidence in regard to defendant's negligence; but it is insisted that plaintiff has been conclusively shown to be guilty of contributory negligence on account of which his judgment should be annulled.

We have carefully and thoroughly gone over the record and find ourselves unable to agree with this contention. Adopting, as we must in view of the jury's verdict, the most favorable construction that can be legitimately given to plaintiff's testimony as a whole, it makes the question of his negligence a matter to be determined by the jury. The opinion of the Springfield Court of Appeals on the former appeal is reported in 185 Mo. App. 464, 171 S. W. 657, and we refer to it for a statement of the facts and for a more extended discussion of the point now under consideration. What is there said applies with cogency and force to the facts as they appear in the record now before us, and we see no need of adding to what that court said upon the point. We are convinced it was a proper case for the jury, and not the trial court, to pass upon.

Defendant's instruction No. 9 was refused, and this it is claimed was error. The instruction, in effect, unqualifiedly declared that if plaintiff, by taking a roundabout way, could have avoided the defective place, he was guilty of contributory negligence in failing to do so. This is not the law. Graney v. City of St. Louis, 141 Mo. 180, 184, 42 S. W. 941. A person is not bound to abandon his customary route of travel in a public street because of a defect therein, unless the defect is so patently dangerous that no ordinarily prudent and careful person would attempt to pass over it. Loftis v. Kansas City, 156 Mo. App. 683, 137 S. W. 993; Heberling v. City of Warrensburg, 204 Mo. 604, 103 S. W. 36; Lueking v. City of Sedalia, 180 Mo. App. 203, 167 S. W. 1152; Besides, there was evidence that any roundabout way was as dangerous as the walk. In fact, one of the other ways was not accessible until after a ditch had been crossed, and it would have been more hazardous to have attempted this in the dark than to have continued on plaintiff's usual and nearest way home as he did.

Complaint is made that the trial court did not adequately reprimand plaintiff's counsel for improper cross-examination of one of defendant's witnesses. The portion of cross-examination complained of is as follows:

"Q. Tom, you are indicted for bootlegging over there now?

"By Mr. Smith: Just wait a minute.

"By the Court: What is that?

"By Mr. Haynes: The attorney should be reprimanded for that. Q. Have you been convicted of bootlegging? A. No, sir; I haven't. Q. Have you ever been convicted of bootlegging over there? A. No, sir; I haven't.

"By Mr. Smith: Now, we think the attorney, Mr. Bowker ought to be reprimanded.

"By Mr. Bowker: The testimony is competent; I understand he has been tried for it.

"By Mr. Haynes: We object to that remark as being improper and ask that he should be reprimanded.

"By Mr. Bowker: I have got a right to ask that. If he has been convicted I can show it.

"By the Court: You have got a right to ask if he has been convicted. But now I will say to the jury this as to any case pending will be entirely withdrawn from the jury and they are not to consider that. As to whether he is indicted now or whether he isn't doesn't concern this case; it is incompetent in this case. (To which action of the court in refusing to reprimand plaintiff's counsel for his conduct, defendant excepted and saved its exceptions at the time.)"

On redirect examination the witness, in answer to a question of defendant's counsel, said he had never been convicted of bootlegging in Cedar county or anywhere else. We are asked to say that this cross-examination, together with the failure of the trial court to reprimand counsel for plaintiff, constitutes reversible error. A large number of witnesses were introduced on each side, and the testimony of the witness in question was merely cumulative. The court clearly and emphatically told the jury that the question as to whether the witness had ever been indicted was wholly immaterial, was incompetent, and was withdrawn from the jury, and that they were not to consider it. It is not reasonable to suppose that, in view of the court's ruling, the jury not only disregarded the court's admonition, but were influenced by the mere question propounded to the witness as to whether he had been indicted. No evidence was given on that subject. The jury are presumed to have understood and heeded the judge's ruling and admonition. Under all the circumstances we do not think the rights of the defendant were prejudiced or that the failure of the court to reprimand (which is all that defendant...