Thompson v. City of Poplar Bluff
| Decision Date | 16 April 1907 |
| Citation | 101 S.W. 709,124 Mo.App. 439 |
| Parties | THOMPSON, Respondent, v. CITY OF POPLAR BLUFF, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Butler Circuit Court.--Hon. Jesse C. Sheppard, Judge.
AFFIRMED.
Judgment affirmed.
Phillips & Phillips for appellant.
(1) The testimony of the witness Charles Baldwin, to the effect that the general condition of the sidewalk in question "has never been good," and which was admitted over objection of counsel for the defendant, was too general in character and should have been excluded by the court on the ground that it was too general and the expression of the opinion of the witness. Spears v. Mt. Ayr, 66 Iowa 721; Eubanks v. Edina, 88 Mo. 650. (2) The court erred in permitting the testimony of the witness W. T. Brickle to go to the jury. Said testimony being in effect: That at some unknown date and at some uncertain place along the line of the sidewalk in question there were "floating planks." There being no allegation in the petition that plaintiff was injured by reason of a floating sidewalk. The evidence must correspond with the allegations of the petition, and be confined to the point in issue. Eddy v. Baldwin, 32 Mo. 369; Green v. Gallagher, 35 Mo. 226; State v Roberts, 62 Mo. 388; Golson v. Ebert, 52 Mo. 270; Burkholder v. Henderson, 78 Mo.App. 293. (3) Plaintiff's first instruction did not require the jury to find that the sidewalk in question was not in a reasonably safe condition, and should have been refused by the court. Young v. Kansas City, 45 Mo.App. 600.
David W. Hill for respondent.
(1) It was not error to admit Baldwin's testimony relative to the general condition of the sidewalk, but, if it had been, it was cured by his cross-examination by appellant. Kuntsch v. New Haven, 83 Mo.App. 174. (2) Likewise the same will apply to Brickell's testimony. (3) On account of the injury, plaintiff lost seven months' time, reasonably worth two dollars per day, and up to the time of the trial his leg was not strong and still pained him, and the verdict for five hundred dollars was not excessive. Williams v. Railroad, 119 Mo.App. 663; Waechter v. Railroad, 113 Mo.App. 270; (4) Plaintiff's first instruction was correct. Young v. Webb City, 150 Mo. 337.
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 the 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 not feel warranted in holding the sum awarded was too great. A doctor called on him three times in connection with his injury and treated it. The doctor said the first time he examined plaintiff's knee he found it swollen and plaintiff was suffering a great deal. The remedy prescribed was a liniment or some other application to the joint. Besides the lotion plaintiff was given morphine to relieve the pain. The doctor said plaintiff probably suffered intensely for eight or ten days from the injury and that a man plaintiff's age (fifty-one years) might suffer pain for months afterwards; that a sprain of a joint was sometimes more stubborn in getting well than a fracture. We will not interfere with the verdict on the ground that the damages were excessive.
The accident occurred on the north side of Ash street between the Frisco railroad station and a building known as the "old machine shops." The testimony for plaintiff showed the sidewalk between those points was in bad repair and had been for a long time; eight or ten months at least. Plaintiff testified the board which tripped him was loose, somewhat rotten, and "a little bit off the stringer." Error is assigned for permitting a witness to testify the sidewalk in question never had been good. We understand the objection to this testimony to be that it was the duty of the witness to state facts showing whether or not the sidewalk was in good condition and the province of the jury to arrive at a conclusion on the issue. No doubt this is true. Yet we think no error was committed in the...
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