Willis v. City of Browning

• Decision Date: 05 February 1912
• Citation: 143 S.W. 516
• Parties: WILLIS v. CITY OF BROWNING.
• Court: Missouri Court of Appeals

143 S.W. 516

WILLIS v. CITY OF BROWNING.

Kansas City Court of Appeals. Missouri.

February 5, 1912.

Rehearing Denied February 19, 1912.

1. MUNICIPAL CORPORATIONS (§ 819)—DEFECTIVE CROSSING—SUFFICIENCY OF EVIDENCE.

In an action against a city for personal injuries from an alleged defect in a board crossing, evidence held sufficient to sustain a verdict that there was a defect, and that the city knew it, or should have known it.

2. MUNICIPAL CORPORATIONS (§ 818)—DEFECT IN STREET—ACTION FOR INJURIES—ADMISSIBILITY OF EVIDENCE—SUBSEQUENT CONDITION OF WAY.

In an action against a city for personal injuries from a defect in a board crossing, evidence that, shortly after plaintiff's injury, the city took out the board crossing and substituted one of cement was inadmissible to show culpability on the part of the city; but, where a model of the old crossing was shown to the jury, such evidence was admissible to show that the model was not taken from the crossing, but was made from memory.

3. EVIDENCE (§ 192)—DEMONSTRATIVE EVIDENCE.

In an action against a city for injuries, it was proper to permit plaintiff to exhibit her ankle to the jury as evidence of its condition.

4. EVIDENCE (§ 192)—DEMONSTRATIVE EVIDENCE—PERSONAL INJURIES.

Plaintiff, in an action against a city for personal injuries, alleged to have resulted through falling through a defective board crossing, was permitted to show the jury how she could walk with and without her crutches. Held, that admission of such demonstrative evidence was reversible error.

Appeal from Circuit Court, Livingston County; Arch. B. Davis, Judge.

Action by Anna Willis against City of Browning. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Scott J. Miller, F. S. Hudson, and E. B. Fields, for appellant. John W. Clapp, John H. Taylor, Paul D. Kitt, and D. M. Wilson, for respondent.

ELLISON, J.

Plaintiff was injured while walking over a board crossing on one of defendant's streets. She charged that the crossing had been negligently maintained, and brought this action for damages. A change of venue was taken from Linn to Livingston county, where she obtained a judgment in the trial court.

The facts, as claimed to be by either side to the controversy, were brought out in much detail. The verdict of the jury relieves us of the necessity for discussing, or in many instances, even referring to these. It is of no consequence to us, in viewing the case from the standpoint of an appellate tribunal, whether the crossing was composed of a greater or less number of boards, or whether these boards were 6 feet or 12 feet long. The fact remains that plaintiff was hurt by one of the boards being in a decayed condition and breaking with her weight, and that her foot and leg went through to the bottom of a drain, about 15 inches deep, throwing her down and inflicting painful injuries. There was evidence tending to show that the crossing had been in use for 5 or 6 years and that plaintiff used it, sometimes daily, for this period. But, notwithstanding her, knowledge, the evidence shows no ground whatever justifying a charge of contributory negligence as a matter of law. On the face of it, the crossing looked sufficiently safe to induce any ordinarily prudent person to attempt to go over it. But from that fact it does not follow that the city did not or could not know of the defect. In the matter of a defective street, there is more owing by the city to the...