| Mo. | Oct 15, 1889
— I. Plaintiffs complain of the action of the court in submitting to the jury by an instruction the question whether the street where the injury
This objection loses whatever force it might otherwise have when it is noted that the court approved the same theory at the instance of plaintiffs themselves.
We find recited in the fifth instruction for plaintiffs, among the facts necessary to a recovery, the following :
“And if the public convenience required a sidewalk on the north side of said portion of said street, then it was defendant’s duty to maintain a sidewalk there in a safe condition for persons passing along the same ; and if you find that defendant neglected so to do, and that plaintiff, in walking along said walk, at the time alleged, and in the exercise of reasonable care, fell and was injured because of such neglect, you will find for the plaintiffs.”
Parties cannot usually maintain objections here to instructions embodying the principles they themselves asserted in the trial court. Tetherow v. Railroad, ante, p. 85.
II. It is next claimed that the court erred in using certain language in defendant’s fourth instruction. We will indicate it by italics to show the context.
“4. If the jury believe from the evidence that the point where the alleged accident occurred in Eleventh street was at a point not usually traveled, and that the city had never opened said Eleventh street at that point for the convenience and use of the traveling public, and that the city had never laid down a sidewalk, but that the persons residing in said neighborhood had laid for their own use and convenience the planks mentioned by witnesses, and that there was sufficient and, ample room in said street at said point so that plaintiff could ham passed with ease and safety said street and point, without walking upon or touching said planks, yet that she nevertheless undertook to walk upon said planks, then
This instruction required the jury to find many more facts than were necessary to a defense and among them those italicized. If “the city had never opened the street at that point for the convenience and use of the traveling public” it would be fatal to plaintiffs’ case, according to their own theory. The instruction would have been good had it stopped at that point. Whether the added matter, of itself, would preclude a recovery is unnecessary to inquire.
III. Error is assigned on the court’s declaration at defendant’s instance, that prior notice to defendant of the defect in the sidewalk was a necessary fact to warrant a verdict for plaintiff. Any vagueness there may have been in that statement, standing alone, was relieved by the fuller information in plaintiffs’ instruction to the effect that “ if the jury believe from the evidence that said sidewalk was not in safe condition for use and travel thereon, and that it was permitted to remain so for such length of time as that, if said city and its officers had used ordinary care in observing the same, they would have known of its unsafe condition, then the city was bound to take notice of said unsafe condition.”
Plaintiffs have no tenable ground of objection on that score, for, in considering the two instructions together, the jurors would have a view of that subject quite as favorable to plain tills as the principles of law warrant.
IY. Nor is there just cause to complain of the instructions submitting the issue of contributory negligence. Taken together those given for plaintiffs and defendant fairly present the correct theory that if the plaintiff could have avoided injury by the exercise of ordinary care she should not recover. This idea was
V. It is suggested that there is a conflict in the instructions. One of those given on behalf of plaintiffs authorizes a verdict for them whether the street, at the point in question, was necessary for the convenience and use of the traveling public or not. On the other hand those given for defendant, make it essential to plaintiffs’ case that the street was necessary for public travel there. This latter idea is also contained in one of plaintiffs’ instructions as has been already mentioned. So whatever inconsistency there is in the instructions is contained in those given at the request of plaintiffs. They therefore cannot successfully assign it as error.
VI. The plaintiff husband was sworn as a witness but an objection by defendant to his competency was sustained. As the wife was the substantial plaintiff in the action, the husband was properly excluded from testifying under our statute on that subject, no showing having been made bringing him within any of the exceptions.
No error materially affecting the merits of the action to the prejudice of plaintiffs having been indicated, we affirm the judgment,