Stern v. Bensieck

• Decision Date: 12 March 1901
• Citation: 61 S.W. 594,161 Mo. 146
• Parties: STERN v. BENSIECK et al.
• Court: Missouri Supreme Court

61 S.W. 594

161 Mo. 146

STERN v. BENSIECK et al.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

MUNICIPAL CORPORATIONS — SIDEWALKS — OBSTRUCTIONS — PERSONAL INJURIES — INFANTS — NEGLIGENCE — DUE CARE — PLEADING — BURDEN OF PROOF.

1. In an action for injuries to plaintiff's minor son, sustained by reason of a defective sidewalk, it was error to instruct that the son was bound to exercise such reasonable care as a boy of his age, experience, and intelligence was "individually capable of," since the boy was bound to exercise only that degree of care which, under like circumstances, was reasonably to be expected of one of his years and capacity.

2. Where, in an action for injuries to plaintiff's minor son by reason of a defective sidewalk, plaintiff alleged that the planks and supports of the sidewalk were rotten, worn out, out of place, and warped so as to form a dangerous obstruction, the substance of the issue being merely that the sidewalk was defective, and formed an obstruction, plaintiff was not bound to prove all the facts as alleged.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by Abraham Stern against John C. Bensieck and the city of St. Louis. Judgment for defendants, and from an order granting plaintiff a new trial defendants appeal. Affirmed.

This is an appeal by defendants from an order of the circuit court of St. Louis awarding plaintiff a new trial. The action is by the father of a minor for the loss of services and expenses incurred by him by reason of an injury to his son, caused by a fall on an alleged defective sidewalk upon which defendant Bensieck's property abutted. The petition alleged, in substance, that defendants maintained in front of premises known as "No. 1113 North Broadway, St. Louis," a wooden sidewalk; that on the 28th day of September, 1895, and for a long period prior thereto, the said sidewalk was in a dangerous and defective condition, unfit and unsuited for the passage of pedestrians thereon; that the planks and supports of said sidewalk were rotten, worn out, out of place, and warped so as to form a dangerous obstruction to persons on foot passing over the same, especially at night; that the city of St. Louis, by its proper officers having charge of keeping its sidewalks in repair, knew of said defective condition of said sidewalk in time to have repaired the same before the injury to plaintiff's son, yet neglected to do so; that on the night of September 28th plaintiff's son was passing over said sidewalk, and, while doing so, by reason of said defective condition of the sidewalk his foot was caught against and under a plank of said sidewalk, whereby he was thrown down, breaking his right arm near the elbow; that plaintiff was entitled to the earnings of his son during his minority; that by the injury to his son plaintiff has lost the earnings of his son during his minority, and incurred expenses for medicines, medical attention, and nursing to the damage of the plaintiff in the sum of $5,000, etc. The answer of defendant Bensieck was a general denial, with a plea of contributory negligence. The answer of the city of St. Louis was a similar plea. There was a general denial for reply. For the purpose of this discussion it is sufficient to say that there was evidence tending to support the petition and answers and reply. There is no dispute upon this question, so that we shall proceed to discuss the grounds urged for a reversal. Upon the trial of the case the jury rendered a verdict for both defendants, and upon motion for a new trial the court sustained the motion, set aside the verdict, and ordered a new trial because of its errors in giving instruction No. 4 at the instance of defendant Bensieck, and instruction 5 given at the request of the city. These were the errors assigned upon the record by the court as its grounds for granting a new trial, though others were assigned in the motion. Since the appeal to this court, defendant Bensieck has died, and the cause has been abated as to him by the judgment of this court. The two instructions, No. 4 given at the instance of Bensieck, and No. 5 given at the instance of the city, are as follows: "(4) The son of the plaintiff was bound to exercise such reasonable care and caution for his personal safety while using the sidewalk as a boy of his age, experience, and intelligence was individually capable of, and as shown by the evidence. And if, from the...