Stephens v. City of Eldorado Springs

• Decision Date: 12 December 1915
• Citation: 171 S.W. 657,185 Mo.App. 464
• Parties: W. A. STEPHENS, Respondent, v. CITY OF ELDORADO SPRINGS, Appellant
• Court: Missouri Court of Appeals

171 S.W. 657

185 Mo.App. 464

W. A. STEPHENS, Respondent, v. CITY OF ELDORADO SPRINGS, Appellant

Court of Appeals of Missouri, Springfield

December 12, 1915

Appeal from Saint Clair County Circuit Court.--Hon. C. A. Calvird Judge.

Judgment reversed and cause remanded.

R. N Banister and Mann, Todd & Mann for appellant.

(1) It was reversible error to refuse defendant a continuance on account of the absence of Dr. Hill as a witness, or as an alternative to refuse to allow defendant to read to the jury the statement of what Dr. Hill would testify as set out in the application. Oliver v. Aylor, 173 Mo.App. 323; Epstein v. Railroad, 250 Mo. 1. (2) The court erred in refusing to sustain defendant's demurrer for the reason that under the state of facts shown in the testimony plaintiff was guilty of contributory negligence in law. Diamond v. Kansas City, 120 Mo.App. 185; Border v. Sedalia, 161 Mo.App. 633; Ryan v. Kansas City, 232 Mo. 171; Wheat v. St. Louis, 179 Mo 572; Coffey v. City of Carthage, 186 Mo. 584; Woodson v. Railroad, 224 Mo. 685. (3) The court erred in refusing to give to the jury defendant's instructions numbers 2, 3, 4, 5 and 6 on question of contributory negligence. Authorities cited under point 2.

J. C. Hargus, J. A. Gilbreath and Scott & Bowker for respondent.

(1) An application for continuance is addressed to the sound discretion of the trial court and unless it is manifested that such discretion has been abused the appellate court will not interfere. Owens v. Tinsley, 21 Mo. 423; Barthlow v. Campbell, 56 Mo.App. 117; Smith v. Smith, 132 Mo. 681. (2) Where an application for a continuance does not show diligence, or no effort to take the deposition of the witness who is claimed to be sick, or reason for not doing so, the appellate court will not interfere with the action of the trial court on such an application. Harris v. Powells, 56 Mo.App. 24; Smith v. Smith, 132 Mo. 681. (3) The trial court did not err in overruling appellant's demurrer to the evidence under the testimony of this case. Deblin v. City of St. Louis, 252 Mo. 203; Heberling v. City of Warrensburg, 204 Mo. 604; Nicholas v. City of St. Joseph, 139 Mo.App. 187; Gibbs v. Monett, 163 Mo.App. 105. (4) It is error to instruct for a defendant on the theory of contributory negligence unless there is a proper plea of contributory negligence in the answer. White v. Railroad, 250 Mo.App. 476; Collett v. Kuhlman, 243 Mo. 585; Stewart v. Railroad, 142 Mo.App. 322.

ROBERTSON, P. J. Sturgis and Farrington, JJ., concur.

OPINION

ROBERTSON, P. J.

This action originated in Cedar county and was taken on a change of venue to St. Clair county, where a jury trial resulted in a verdict for plaintiff and defendant has appealed.

Plaintiff, while passing at night along one of the defendant city's sidewalks, constructed of flagstone, caught his foot on the end of a stone therein raised about six inches above the general level of the walk where it crossed a gully and fell, receiving the injuries for which he sued. The defendant does not on this appeal question that there was ample testimony from which the jury was justified in finding it guilty of negligence. This walk had been plaintiff's usual route between his home and place of business for a long time and consequently he was perfectly familiar with the defect. Appellant does not complain of the amount of the verdict. The two points urged are that the trial court erred in overruling its application for a continuance and in refusing requested instructions, one of them a direction to find for defendant.

The application for a continuance was on the grounds of the absence of three witnesses, residents of defendant city and one of them, Dr. Hill, being the physician who rendered the first aid to the plaintiff after his injury. The application sets out that the witnesses were absent "on account of their own sickness or sickness of members of their family, as shown by certificates of physicians" thereto attached. The record does not disclose these certificates, but the respondent, in his brief concedes that Dr. Hill was sick. The respondent admitted that if the two witnesses, other than Dr. Hill, would, if present at the trial, testify as set out in the application. The court then overruled the application as to Dr. Hill. There was no reversible error committed in so doing. The deposition of Dr. Hill would have been admissible under the third, fourth and fifth paragraphs of section 6411, Revised Statutes 1909 and there was no showing that it could not have been taken for use at the trial. [Harris v. Powell, 56 Mo.App. 24, 25; Smith v. Smith, 132 Mo. 681, 34 S.W. 471.] The case was lodged in the St. Clair County Circuit Court a month before the trial.

The fact that the plaintiff may have seen fit to make the admissions concerning the other two witnesses does not deprive him of his right to stand on the question as to the sufficiency of the application so far as it related to Dr. Hill. Appellant insists that the real reason for not making the admission as to Dr. Hill was that respondent thought the doctor was disqualified as a witness, but the record does not disclose this to be a reason for not making the admission, and we must sustain the court's action here on any proper ground that the record justifies.

The appellant concedes here that while the plaintiff knew of the defect in the walk he was not guilty, as a matter of law, of contributory negligence in using it, but contends that we should declare as a matter of law that he did not exercise ordinary care in his use of it. In arguing this proposition the defendant has relied very materially on testimony of the plaintiff that may be construed most unfavorable to him, while we must in view of the verdict adopt the most favorable construction, and in so doing we find we must rule against appellant on its contention that the trial court erred in refusing to direct a verdict for it. That the respondent could have avoided the accident is beyond controversy, but the question we have is, should we declare as a matter of law that the plaintiff was not exercising such care as an ordinary prudent person would use under the same or similar circumstances? At the place where he fell it was dark and he says he was proceeding carefully, as he had always done in passing over the walk at night, and that he thought he had passed this defect. There was no testimony by the witnesses as to the surroundings, that there was any particular thing there, except the defect itself, to indicate the exact location of this rise in the walk, or whereby he could fix its location. The gully was there, but there is no evidence to what, if any, extent it could be seen the night of the accident. The jury was exhibited photographs, but they are not reproduced in the record and we cannot know what they disclose. In the case of Ryan v. Kansas City, 232 Mo. 471, 483, 134 S.W. 566, 585, cited by appellant, it is said that the duty of exercising ordinary and usual care does not "mean that the pedestrian must keep his eyes riveted upon the sidewalk at each step of the progress." In another case cited by appellant, Border v. City of Sedalia, 161 Mo.App. 633, 638, 144 S.W. 161, we find the following rule announced:

"If the danger was of a nature to threaten plaintiff with injury if he attempted to use that way at night despite the care he might exercise, his use of the crossing should be denominated negligence in law, since an ordinarily careful and prudent person would not voluntarily and unnecessarily subject himself to risks of that kind. On the other hand, if the danger was of a less degree and was one that could be overcome by the exercise of reasonable care, the issue of whether or not plaintiff was negligent would be one of fact for the jury to determine."

All of the cases relied on by appellant have been read by us as well as the cases therein cited, but we can see no reason for further commenting on them as we are convinced this is a proper case for a jury, and that in so holding we are following the decisions of the Supreme Court and are not in conflict with any decision of the other Courts of Appeal. [Devlin v. St. Louis, 252 Mo. 203, 158 S.W. 346; Gibbs v. Monett, 163 Mo.App. 105, 111, 145 S.W. 841; Graney v. St. Louis, 141 Mo. 180, 184, 42 S.W. 941; Alexander v. St. Joseph, 170 Mo.App. 376, 156 S.W. 729.]

The defendant requested and was refused five instructions, besides its demurrer to the evidence (refused instruction numbered 1), hypothetically submitting, in a specific manner, the question of plaintiff's negligence. The refused instruction, numbered 2 in the abstract of record, is as follows:

"The court instructs the jury that where a person knows of a confronting danger, and fails to use reasonable care to avoid being injured thereby, the law calls his conduct careless, because it is out of harmony with ordinary prudence and loads it with the entire responsibility for the consequences, notwithstanding the negligence of another may have aided in producing them.

"Therefore if you find and believe from the evidence that plaintiff knew of the defective condition of the sidewalk and failed to use reasonable care to avoid falling on it your verdict should be for defendant."

In determining the effect of the failure of the court to give some of defendant's refused instructions, embodying the theory therein contained as to this defense, we must accept as true the testimony most favorable to it, as we did above in plaintiff's behalf when passing on defendant's demurrer to his testimony. In one place of the plaintiff's testimony he has this to say about his conduct in passing over the walk on the night of the accident:

"I was going along carefully as I had before. I don't remember that...