Wright v. Hines

• Citation: 235 S.W. 831
• Decision Date: 05 December 1921
• Docket Number: No. 2857.,2857.
• Parties: WRIGHT v. HINES, Director General of Railroads.
• Court: Court of Appeal of Missouri (US)

235 S.W. 831

WRIGHT v. HINES, Director General of Railroads.

No. 2857.

Springfield Court of Appeals. Missouri.

December 5, 1921.

Rehearing Denied January 4, 1922.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by Mary Wright against Walker D. Hines, Director General of Railroads. Verdict for plaintiff, and from an order sustaining defendant's motion for a new trial, plaintiff appeals. Affirmed.

A. R. Dunn, of Neosho, for appellant.

W. F. Evans, of St. Louis, and Mann & Mann, of Springfield, for respondent.

COX, P. J.

Action for damages for personal injuries caused by a fall on a sidewalk in the city of Pierce City. Verdict for plaintiff, motion for new trial by defendant sustained, and plaintiff has appealed.

The substantial facts developed by plaintiff's testimony and by cross-examination of plaintiff's witnesses are as follows: The Frisco Railroad runs east and west through Pierce City. What we shall refer to as Locust street runs south from defendant's track to an east and west street known as Halstead avenue. Locust street crosses a creek some distance south of the railroad. This street had been graded, but by whom is not clear. It had been used as a street or public highway for 40 or 50 years, and the city had expended some money In repairing the street, but just when these expenditures were made is not clear. In 1904 a bridge was built across the creek in Locust street, and paid for by the county and the city of Pierce City jointly. Across the east end of this bridge, and as a part of it, was a sidewalk. The city kept this bridge in repair with city money. The railroad company many years ago built a section house near the railroad on the east side of Locust street, and fenced in the ground surrounding this house, and just outside of the fence had constructed a board sidewalk running north and south, and had maintained this walk to the time of the accident. South of this board walk the ground was fenced on a line with the fence enclosing the section house and a chat and cinder sidewalk, connecting with the south end of the board walk, Continued to the bridge. The plaintiff had alighted from a train at the depot, and, in traveling south over the board sidewalk passing defendant's section house, the heel of her shoe caught in the walk in some way, and she fell and was injured.

The contention of plaintiff at the trial was that Locust street was not a public street, and that the railroad had built and maintained the board walk for the use of its employees and persons going to and from its trains, and had invited the public to use it, and was therefore liable for negligence in not repairing and keeping it in a safe condition. The defendant contended that Locust street was a public street, and the sidewalk a part thereof, and for that reason defendant was not liable to plaintiff for failure to repair.

In the course of the trial, the court, over the objection of defendant, had admitted testimony to the effect that defendant had removed this board walk and replaced it with a cinder walk shortly after the accident. This was admitted for the purpose of showing that the defendant exercised control over the walk, and not as an admission of negligence in failing to keep the board walk in repair, but the purpose for which this testimony was admitted was not explained to the jury at the time of its admission, and the failure of the court to make this explanation at the time was one ground on which the motion for a new trial was sustained. No instruction was asked by defendant limiting the effect of this testimony, and none was given, and plaintiff contends that defendant cannot now complain. That the evidence was not admissible as an admission of negligence is clear, and, had the court so told the jury at the time, or had limited its effect by instruction, there would have been no room for complaint. The better practice would have been to have done both. In our view of this case, however, we do not regard the court's action in this particular as vital but if the case is retried, and the same evidence is offered, the jury's attention should be called to the purpose for which it is admitted at the time, and, if defendant asks an instruction for the same purpose, it should be given.

The other ground upon which the motion for new trial was sustained was based on a mistake made by one witness for plaintiff. This witness testified at the trial that the board walk where the accident occurred had been moved from its place by a flood, and had been brought back and replaced by the railroad company a short time before the accident. After the trial was over, he discovered that he had been mistaken in this testimony, and that the flood and the replacement of the walk occurred after the accident. This fact of his mistake was alleged in the motion for new trial, and supported by his affidavit. This witness was the only one who testified at the trial in relation to the flood displacing the walk and the railroad...