Doherty v. Kansas City

105 Mo. App. 173 | Mo. Ct. App. | 1904

BROADDUS, J.

The plaintiff sues to recover damages sustained by reason of a fall she received in passing over one of defendant’s sidewalks at a point on Madison street. The evidence shows that she was tripped by the tilting of a loose board in said walk, fell and was injured. It was shown that the sidewalk .had been in an unsafe condition for several weeks but there was no evidence that defendant’s officers had actual -notice of its condition in time to have repaired it before plaintiff’s injury.

There was a trial and verdict for plaintiff for $2,000.

The defendant contends that the petition does not state a cause of action, that the verdict is excessive, and that the court committed error in giving certain instructions in behalf of plaintiff.

The petition fails to state that defendant had notice of the defective condition of the walk, or that it had so existed for such a length of time that defendant by the exercise of ordinary care could have known of its condition in time by the exercise of such care to have repaired it so as to have prevented plaintiff’s injury. No objection was made during the trial to the petition on account of the defect noted. It does state, however, that the sidewalk was maintained by defendant in its defective condition for a long time prior to plaintiff’s injury. It is a defect that could be made good by amendment, and is sufficient after judgment. Hurst v. Ash Grove, 96 Mo. 168.

But the same error occurs in plaintiff’s instruction number two. And there were no other instructions on either side that cured the error. Plaintiff contends that it was a harmless error at most as all the evidence went to show that the sidewalk had been in an unsafe and dangerous condition for a long time previous to the plaintiff’s injury, and notice to defendant should be inferred as a matter of law. But in view of other evidence that its bad condition was not discoverable, we do not feel justified in so holding. And we entertain grave doubts as to the propriety of the amount of the verdict. The evidence as to the permanent injury to plaintiff’s leg is not altogether satisfactory. It appears to have been larger than the other one but some of the medical experts were of the opinion that it was the result of varicose veins and not the result of the injury. Dr. Halley, one of plaintiff’s witnesses, testified that the cause of the injury primarily was the varicose veins, secondly, the injury. It does not appear that she lost more than two months’ time of her labor.

Under the peculiar circumstances of the case we do not feel at liberty to disregard the error on the ground that the verdict in every particular is for the right party.

Eeversed and remanded.

All concur.