York v. City of Everton

• Decision Date: 19 November 1906
• Citation: 97 S.W. 604,121 Mo. App. 640
• Parties: YORK v. CITY OF EVERTON.
• Court: Missouri Court of Appeals

97 S.W. 604

121 Mo. App. 640

YORK v. CITY OF EVERTON.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

1. MUNICIPAL CORPORATIONS — TORTS — DEFECTS IN SIDEWALK — QUESTION FOR JURY.

In an action for injuries from defects in a sidewalk, evidence held to present questions for the jury as to whether plaintiff had been injured by the alleged defects, and whether, if the walk was unsafe, it so existed for so long that defendant, by the exercise of ordinary

care, should have discovered and repaired it before plaintiff's injury.

2. SAME — NOTICE OF DEFECTS.

Where the stringers and planks of a sidewalk were so rotten that they would not hold nails for a long time prior to the injury sued for the city was chargeable with constructive notice of the defective condition.

3. DAMAGES — MEASURE — MEDICAL EXPENSES.

In an action for personal injuries, the recovery for medical services and for care and nursing should be limited to a reasonable sum for such services, and not to what was actually paid.

4. TRIAL — INSTRUCTIONS — ASSUMPTIONS AS TO FACTS.

An instruction that, in estimating plaintiff's damages, the jury may take into consideration a sum that will compensate her for the expenses she paid or incurred effecting, or attempting to effect, her cure, and caring for and nursing during the period she was disabled is objectionable as assuming that she had paid such expenses, and that she had been nursed and cared for.

5. MUNICIPAL CORPORATIONS — TORTS — PERSONAL INJURIES — DEFECT IN SIDEWALK — INSTRUCTIONS.

In an action for injuries from a defective sidewalk, an instruction which failed to limit plaintiff's right to recovery to injury received on account of defect in the walk at the place mentioned in the petition was erroneous.

6. DAMAGES — ELEMENTS OF COMPENSATION — LOSS OF PROFITS.

A milliner, suing for personal injuries, is not entitled to recover for loss of business during her disability.

7. WITNESSES — IMPEACHMENT — EVIDENCE.

In an action for personal injuries, evidence that the reputation of plaintiff as to chastity was bad was admissible to impeach her testimony.

8. MUNICIPAL CORPORATIONS — PERSONAL INJURIES — DEFECT IN SIDEWALK — INSTRUCTIONS.

In an action for injuries from a defective sidewalk, an instruction that, if a plank in the sidewalk was loose and the injury was caused thereby, still, if the sidewalk was reasonably safe for travel in the ordinary modes, the jury must find for defendant was properly refused, as the sidewalk would not be reasonably safe if there were a loose plank.

9. TRIAL — INSTRUCTIONS — DEFINITION OF TERMS.

In an action for personal injuries from a defective sidewalk, there was no error in refusing an instruction in which the word "reasonably" was defined to mean "in a reasonable manner; consistent with reason; in a moderate degree; tolerably."

Appeal from Circuit Court, Dade County; L. W. Shafer, Judge.

Action by Winnie R. York against the city of Everton. From a judgment in favor of plaintiff, defendant appeals.

Neal & Ragsdale and Thurman & Timmonds, for appellant. Edward Frieze and H. C. Timmonds, for respondent.

BROADDUS, P. J.

The plaintiff's suit is for damages claimed to have been caused by a fall she received on a defective sidewalk of the defendant city, on the 27th day of October, 1904. She alleges that defendant's sidewalk on the east side of Main street was defective, in that the stringers and boards out of which the sidewalk was constructed were old, rotten, and decayed, and the boards that made the covering were unnailed and liable to become misplaced, and were uneven and of different thicknesses; that she, while walking along at the usual and ordinary gait, by the reason of the dangerous and defective condition of said walk, stepped on a loose board, which flew up and let her through said sidewalk, which had the effect of bruising her hand and leg and thigh and wrenching her back, and internally injuring her; that the sidewalk had been out of repair long enough for the defendant, by the exercise of ordinary care, to have known of its defective condition, etc.; and prayed judgment for $3,000 and for a physician to doctor her. The defendant's answer was a general denial. The jury returned a verdict for $600, upon which judgment was rendered, and the defendant appealed.

It is admitted by respondent that the cause should be reversed on account of errors committed by the court in giving certain instructions in her behalf, but she asks that the cause be remanded for a new trial. On the other hand, appellant insists that the plaintiff was not entitled to recover under the testimony, and that the cause be reversed without remanding.

The plaintiff, among other things, testified that when she got to the west side of the Blakey Building, close to the double door at that point, she stepped on a plank which let her left leg go through and she was thrown down; and that she was thereby injured in her back and hip and left leg, and was also injured internally. Her testimony tends to show that she suffered greatly in consequence of the alleged fall. Her daughter, Lottie Griesel, testified that, soon after the alleged accident, she was sent for and that she found her mother in bed sick; that she was suffering; that she was pale and sick; and that she was confined to her bed for three weeks; and that she could not do anything since her fall. A Mrs....