112 Mo. App. 704 | Mo. Ct. App. | 1905
Action to recover damages fof personal injuries. On the evening of August 23,1902, plaintiff and two companions were walking along the sidewalk on the east side of Chestnut street in defendant city. At a point near Third street plaintiff stepped into a hole fell, and was injured. ' This hole, in the east side of the walk, was about two feet long and eight inches wide and had been caused by the breaking off of the end of one of the planks of which the walk was constructed. The judgment was for plaintiff.
Defendant asked an instruction in the nature of a demurrer to the evidence, the giving of which was refused. The facts relied upon to -support this action of the court, as disclosed by the evidence introduced by plaintiff, are as follows:
The sidewalk at the place in question was upon one of the principal thoroughfares of the city and much used by pedestrians. The hole had been suffered to remain there for a long period of time — six months or more. The
People in using public sidwalks, as upon all other occasions, are expected to make reasonable use of their faculties to detect and avoid dangers, but are not required to exercise more than ordinary care. They may rely to some extent upon the implied assurance that the way is reasonably safe, and that after the lapse of sufficient time in which to make repairs, defects previously noticed have been remedied. Ordinarily, the question of plaintiff’s contributory negligence is for the jury to decide, and we perceive nothing in this case to make it an exception to the general rule. The instruction was properly refused. Objection is offered to plaintiff’s first instruction. That part criticised is as follows: “ . . . and that the authorities of the said city knew of said walk’s unsafe condition (if you find it was in an unsafe condition) prior to the occurrence of said injury, if any, or would have known of its said unsafe condition (if you find it was in an unsafe condition) if they had exercised reasonable care in the inspection of the said walk and that after such notice, either actual or implied, a reasonable time had elapsed
Objections also are made to- plaintiff’s instruction upon the measure of damage. The question of the permanency of the injuries sustained was submitted therein, and it is claimed the petition does not sufficiently plead that fact. The averment is as follows: “Plaintiff was thrown down, her said left foot and leg severely lacerated, bruised, strained and injured; her said left hip bruised, the same and her back being terribly strained as the result of said fall, and her whole physical and nervous system being permanently injured thereby.” This language was clear and definite enough to advise defendant that the fact of permanent injuries was an issue to be met. Brown v. Railway, 99 Mo. 310. There is sufficient evidence in the record tending to show a permanent condition of injury, and the issue therefore was for the consideration of the jury. The instruction with respect to such injuries as well as to future pain and suffering was in proper form and free from the criticism that it •"permitted the jury to indulge in conjecture. We have recently discussed this subject in the cases of Wilbur v. Railway, 85 S. W. 671, 110 Mo. App. 689, and Ballard v. Kansas City, 86 S. W. 479, 110 Mo. App. 391. The views expressed in those cases fully answer the contentions here advanced.
Defendant placed and constructed the walk and by implication invited the public to use it, and undertook to maintain it in a reasonably safe condition for travel. It was intended to be, and apparently was, situated upon land devoted to such use. The fact that a small portion of its surface extended upon private property was Avithout effect upon defendant’s obligation to maintain such
The damages awarded are said to be excessive. The judgment was for $2,100. Plaintiff at the time of injury fifty-five years old was strong and healthy, able to do her housework and to follow the occupation of nursing. At the time of the trial, some twenty months after the injury, she was incapacitated from the performance of any but the lightest work. Her injuries were severe, very painful and apparently permanent. It is true, defendant offered evidence tending to show a different condition from that asserted by plaintiff and her witnesses, but the issue of fact thus raised Avas resolved by the jury in favor of plaintiff and we are not justified in interfering without it appears the verdict Avas the result of some misconception of duty and not the expression of honest conclusion founded upon substantial evidence. We find no reason for pronouncing the verdict excessive. Brown v. Railway, supra.
After careful examination of the record and consideration of the various' points raised by defendant some of Avhich we deem it unnecessary to specially notice, we find no error prejudicial to defendant.
The judgment is affirmed.