Thompson v. City of Poplar Bluff.

• Decision Date: 16 April 1907
• Citation: 101 S.W. 709,124 Mo. App. 439
• Parties: THOMPSON v. CITY OF POPLAR BLUFF.
• Court: Missouri Court of Appeals

101 S.W. 709

124 Mo. A. 439

THOMPSON v. CITY OF POPLAR BLUFF.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

1. DAMAGES — EVIDENCE — SUFFICIENCY — PERSONAL INJURIES.

In an action against a city for injuries caused by a defective sidewalk, a verdict for $500, where plaintiff injured his knee and suffered much pain, held not excessive.

2. EVIDENCE — OPINION EVIDENCE — MUNICIPAL CORPORATION—DEFECTIVE STREETS.

In an action against a city for injuries caused by a defective sidewalk, a witness testified that the sidewalk never had been good, and the court on motion struck out the answer. Subsequently the witness was asked to state the condition of the walk, to which question defendant's counsel objected as too general, which objection was overruled. The witness repeated his statement that the sidewalk never had been good, and stated that the planks never looked safe, but that he did not remember seeing loose ones, and that part of the street did not have a sidewalk Defendant's only objection to this testimony was to move to strike the statement that planks were missing. Held that, though witness could not give his opinion as to the condition of the walk but was bound to state the facts, yet the question asked him as to the condition of the walk was proper, being capable of the construction that it called for a statement of the facts, and that there was no error committed in the admission of the witness' testimony.

3. MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALK—EVIDENCE—ADMISSIBILITY.

In an action against a city for injuries caused by a defective sidewalk, plaintiff was not restricted in showing the bad condition of the walk to the loose board which caused the accident, but might show that in its immediate vicinity the walk was in bad order.

4. APPEAL—REVIEW—HARMLESS ERROR—EVIDENCE.

In an action against a city for injuries caused by a defective sidewalk, a witness testified that on one occasion when he was going over the walk the boards were loose and floating, which testimony about the floating planks defendant moved to strike because the circumstance therein referred to had occurred two years before the trial. On cross-examination, the witness stated that he was satisfied the walk was not in good condition when plaintiff was injured, and that he was certain there were loose boards there when the accident happened. Held no error in refusing to strike the witness' testimony.

5. TRIAL—INSTRUCTIONS.

In an action against a city for injuries caused by a defective sidewalk, an instruction required the jury to find that the walk was in a "dangerous condition" for persons traveling over it, and in another instruction the jury were charged that defendant was bound to exercise no greater care than was sufficient to keep its walks reasonably safe. Held, that the care required was submitted under proper instructions.

Appeal from Circuit Court, Butler County; Jas. L. Fort, Judge.

Action by Frank Thompson against the city of Poplar Bluff. From a judgment for plaintiff, defendant appeals. Affirmed.

Phillips & Phillips, for appellant. David W. Hill, for respondent.

GOODE, J.

On March 7, 1905, plaintiff fell while walking on a sidewalk in the city of Poplar Bluff. He subsequently instituted the present action to recover for an injury said to have been caused by the fall, which, he alleges, was due to the negligence of the defendant in maintaining the sidewalk in bad repair The walk was a board one, and the fall was occasioned by a loose board, which either tilted sidewise or flew up at one end when plaintiff stepped on it. The precise manner in which the accident occurred is a trifle obscure on the evidence. The injury complained of was to plaintiff's right knee. He said it was a permanent injury, but his physician's opinion was that it was slight. Plaintiff had been lamed many years before by an accident, which left one leg shorter than the other, but he said the crippled member was as strong as the other until the occurrence of the accident for which he sues. His testimony was that he had not been able to work since. Prior to the accident he was earning $16 a month and his board working in a hotel office. At the request of defendant's counsel plaintiff exhibited his injured knee to the jury for their inspection, and gave testimony as to the effect of the former injury received when he was young and the later one. One complaint on the appeal is that the verdict was excessive. It was for $500, and, in view of plaintiff's testimony and the examination of his limb made by the jury, we do...