Wright v. Kansas City

• Decision Date: 30 March 1905
• Citation: 86 S.W. 452,187 Mo. 678
• Parties: WRIGHT v. KANSAS CITY.
• Court: Missouri Supreme Court

86 S.W. 452

187 Mo. 678.

WRIGHT v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

March 30, 1905.

MUNICIPAL CORPORATIONS — PERSONAL INJURIES — DEFECTIVE SIDEWALK — EVIDENCE — QUESTION FOR JURY—WITNESSES—IMPEACHMENT—MORAL CHARACTER — INSTRUCTIONS—CHANGE OF VENUE.

1. If an examination of the record shows that the testimony upon which the judgment rests was perjured and insufficient to support the finding, it is the duty of the Supreme Court to reverse the judgment upon that ground.

2. In an action against a city for personal injuries from a defective sidewalk, evidence held sufficient to justify submission of the case to the jury.

3. In an action against a city for personal injuries from a defective sidewalk, it was proper to instruct that the fact that plaintiff lived in an immoral relation with a certain man did not affect her right to recover.

4. The immoral conduct of a female witness can be shown for the purpose of affecting her credibility only by evidence of general reputation for chastity, and evidence of specific immoral acts is not admissible.

5. In an action against a city for personal injuries, an instruction to find for plaintiff if defendant, by the exercise of ordinary diligence, could have known of the defective condition of the walk for a period reasonably sufficient to have repaired it before the injury, was not in conflict with another instruction authorizing a finding for plaintiff unless the jury believed that the sidewalk had been in a defective condition for a sufficient length of time before the accident for the city officials to have discovered it, by the exercise of ordinary diligence, in time to have repaired it before the accident.

6. In an action against a city for personal injuries, an instruction that, if the jury found for plaintiff, they would then be authorized to take into consideration her age and condition, physical injuries inflicted, bodily pain, mental anguish, etc., which would in the future reasonably result from the injuries, was not objectionable as assuming facts, nor on the ground that it did not bind the jury to the evidence, or require findings of a permanent injury to support a recovery for future suffering.

7. It is not error to refuse a requested instruction which is sufficiently covered by one given by the court on its own motion.

8. Alleged error in granting a change of venue to a certain county cannot be reviewed where there was no objection or exception to the order granting the change of venue.

9. Laws 1879, p. 82, § 33, creating the divisions of the circuit court of Jackson county, provided that, on application for change of venue for prejudice of the judge, the case should be transferred to the division held by the other judge, but, if reasons for change of venue exist against both judges, the cause might be transferred to the circuit court of some contiguous county. This provision was continued by Laws 1889, p. 77, creating four divisions of the Jackson county circuit court. Rev. St. 1899, § 822, provides for change of venue for prejudice of the inhabitants, and that the cause may be sent to any other county. Held, that where an application for change of venue on the ground of prejudice of the judges of each of the divisions of the Jackson county circuit court, and of prejudice of the inhabitants, was granted, and the cause sent to a county not contiguous, the change would be deemed to have been granted for prejudice of the inhabitants, so that it was proper to send the cause to a noncontiguous county.

Appeal from Circuit Court, Benton County; W. W. Graves, Judge.

Action by Eliza J. Wright against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by plaintiff to recover damages for injuries alleged to have been sustained by her on a plank sidewalk on the west side of Kansas avenue, a public street of Kansas City, Mo. The injury is alleged to have occurred October 30, 1899. The negligence complained of is that the defendant negligently and carelessly permitted the wooden sidewalk on the west side of Kansas avenue, between Eighteenth and Nineteenth streets, and about opposite and adjacent to Nos. 1808 and 1810 Kansas avenue, to become out of repair, unsafe, and dangerous to persons walking thereon, in this, to wit: that the wooden stringers or sills upon which the boards forming the surface of said board sidewalk were laid had become decayed, rotten, and worn away, and the boards of said wooden sidewalk had become unfastened and loose from these stringers and supports, so that persons walking thereon were greatly endangered from the loose boards tilting, flying up, tripping, and precipitating such persons upon said sidewalk or ground; that said defective and dangerous condition of said board sidewalk was known to defendant for a long period of time prior to the time of the injuries complained of herein, sufficient for the defendant, in the exercise of ordinary care and diligence to have repaired said sidewalk, or, by the exercise of ordinary care, defendant could have discovered the defective and unsafe condition of said board sidewalk, and could have repaired the same, in time to have averted and prevented the injuries to plaintiff hereinafter mentioned. The manner in which the injuries complained of were received are thus stated: That on or about the 30th day of October, 1899, at about 6 o'clock p. m., she, in company with one Mrs. Harris, was walking—side by side—south on the board sidewalk on the west side of said Kansas avenue, about opposite and adjacent to Nos. 1808 and 1810 Kansas avenue, between Eighteenth and Nineteenth streets, in Kansas City, Mo., and that when at the place aforesaid, and while in the exercise of due care and caution, one of the loose boards of said sidewalk tilted and flew up, and struck plaintiff upon the left leg, about midway between the knee and ankle, on the tibia bone, with great force, so that plaintiff was thrown to and upon said sidewalk; that plaintiff's left leg was thereby severely hurt, bruised, and injured, and plaintiff otherwise bruised, strained, and contused; that the injury to plaintiff's left leg resulted in an open wound and sore, known as a "shin abscess," which is a permanent injury, and a constant menace to plaintiff's life and limb; that plaintiff has suffered, and will continue to suffer the remainder of her life, great pain of body and mind; that plaintiff has been rendered incapable of performing her usual avocation, and her ability to earn a livelihood has been greatly impaired, for which injuries plaintiff prays for judgment in the sum of $10,000. The answer of the defendant city was a general denial and a plea of contributory negligence.

Plaintiff testified in her behalf. Her testimony tends to show substantially this state of facts: That she is 57 years old. Resides in Kansas City with her husband, and was injured October 30, 1899, on sidewalk on west side of Kansas avenue, between Eighteenth street and Nineteenth street, about opposite No. 1810. That while she and a Mrs. Harris were walking south, side by side, Mrs. Harris stepped a little in front, tipping a loose plank, so that her left foot and leg slipped or fell through about two feet, throwing her violently forward upon her face. That the sharp edge of the board caused a large bruise upon her left leg, between the knee and ankle. That the injury did not respond to treatment, but resulted in a large, painful, and running sore. That she was not familiar or acquainted with the sidewalk at the place of injury, and had never been over it before. That her sufferings were intense. That she kept her foot in a horizontal position on a pillow for six weeks. That she was for a long time wholly incapacitated from performing her necessary household duties, and was capable of doing them indifferently and with great difficulty at the time of the trial. That her husband and son were compelled to do them. That she is not now, and never will be, able to earn a livelihood, cannot wear a shoe, has lost much flesh, and cannot stand for any length of time on her foot. Two other witnesses were present at the accident—Mrs. Harris and Frank C. Rodenwald. Mrs. Harris states that she was acquainted with the sidewalk where respondent was injured for two years; that the boards were loose, and stringers rotten; that, while walking south—side by side—with respondent, one of the loose planks flew up or turned over, and respondent's left foot and leg slipped under it, and she fell forward on her face, and remained there sometime; that she had never seen Mrs. Wright until that time. Rodenwald says: That he had known the sidewalk at the point of the accident four or five years. That the boards had been loose and rotten two or three years prior to the accident. Witnessed the accident. Saw her lying on her face; her head toward the south; her left leg down between. the boards about two feet. That he helped her out, and then went on. That he recognized Mrs. Harris, who was with Mrs. Wright, but did not know respondent. There was other testimony introduced, showing that the sidewalk at the place of the injury had been in bad condition—the boards rotten and loose at one end—for three or four years before the accident; that the appellant had repaired the sidewalk in that vicinity twice during that time.

Drs. Palmer, Sharp, and Pearse testified as to the injury shown them by plaintiff, and the tendency of their testimony is to the effect that it was a serious injury, and would probably give plaintiff a great deal of trouble. It is unnecessary to reproduce in detail their testimony.

There was sufficient testimony to authorize the jury to find that Kansas avenue, at the place where the injury is alleged to have occurred, was one of the public streets of the city, within its corporate limits, and that it was the duty of the city to keep the sidewalk of such avenue in a reasonably safe condition for the use of ...