*1 n City Appellant, Hartkopf, G. A. v. Wilso Elliott of St. Louis. 99 W. Two,
Division November 1936.* Edwin A. appellant. Smith for Opinion 1936, August May Term, 20, 1936; *NOTE: motion filed; rehearing September Term,
for 1936. motion overruled at November Elliott; Edgar
Alphonso Howe and William H. Allen for Wilson Wayman City H. and Louis A. McKeown for of St. Louis. *2 injuries. We dаmages COOLEY, personal C. Action for plaintiff and respondents, respectively, shall refer to and gave per- plaintiff’s At the close of evidence defendants. defendant. directing favor of each emptory instruсtions verdicts move to thereupon involuntary took nonsuit with leave an Plaintiff was duly filed and overruled to set the same aside. Such motion was plaintiff appealed. and building on the apartment Elliott situated owned
Defendant in a resi- Avenue, an east and street side of McPherson west north Mc- city portion St. central part of the Louis. The dential at the paved for with a curb traffic, Pherson was vehicular Avenue adjacent pavеment. North of and to said curb there north side of the immediately grass plot, eight wide, parkway or to ten feet and was a grass adjacent property line which con- plot, north to boundary street, was concretе the north line there stituted Extending from side- sidewalk some sis feet or more wide. said (across parkway) walk to the there was a concrete south curb eight walk wide. walk was in front Elliott’s about feet This walk, apartment to this as thе concrete house. We shall refer walk along sidewalk and ad- distinguish it from above mentioned grass jacent street. The property to the on the north side- line plot and westward from Elliott’s referred to extended eаstward buildings of Elliott’s. building, in on each side front residential evidently of the purpose Its street was ornamentation abutting properties. years had herein Elliott
About ten the accident involved before railing pur- an iron for the grаss plot above described erected twenty eighteen or protecting grass plot. It was located pose of inside, property line—of the curb. north —that toward inches consisting gas railing, substantial, pipe a two inch It was a solid uprights firmly size and material set supported by same railing high. or eighteen nineteen inches It was ground. The good maintained condition. and was well constructed turning property, of Elliott’s alley to the east paralleled curb grass alley parkway across the or along the line and there northward pedestrians edge sidewalk, keep so of the from plot to near the railing. grass plot was city walking across the —which had actual or show that constructive evidence tends The railing of the per- and maintenance knowledge erection of the maintenance. its mitted party attended a injury he had night On the building. living apartment Elliott’s friend apаrtment of a go up plaintiff home. party broke one o’clock a. left about m. were a next to-the parked There in the street number automobiles curb, north one of which was in concrete walk. order front of the get following around car concrete plaintiff, instead railing, curb, grass plot walk to walked across the falling pavement breaking onto his elbow. He testified though there, did not know it was he he see did not looking say did nоt he was or not have it had he- that he could seen observing. been There was to the-' the auto- some evidence effect that light light- mobiles at the tended from street curb to shut off place opposite- somewhat thé where fell and on the plaintiff east light was, however, of the street side streets There electric good sixty street, just on the north line, side inside curb about place plaintiff grass feet west of parkway where fell: рlot, light between said last-mentioned standard and said concrete *3 sycamore They walk there were two or three small trees. were being light north standard, farther than the about from four feet testimony the curb. Neither the of nor photographs witnesses the prevented introduced in show rays evidence the trees of the light falling upon railing said street place plaintiff the at the where plaintiff’s over it. fell Some of witnesses said that it was difficult railing question'because to see at the time in of insufficiency of light, but it admitted that could seen when a be close to it. person'got charges petition city Plaintiff’s with negligence per- defendant in mitting railing to erect and maintain the when it knew or E.lliott persons likely have should known that street, would cross the “in apartment front of said house’’’ in nighttime, when autoimobiles likely curb, casting would be at north parked upon a shadow ' railing about the rendеring and thus negli- Like únnotieeable. charged gence against having Elliott for erected and maintained against charged him it is thereby further that he pléaded a of nuisance within the a meaning city created ordinance. separate of The' answers each generally defendants denied negligence allegations petition part on the' of charged averring plaintiff, specifying same and injuries, whatever if negligence. any, due to he received were his own disposition obliged For the' feel to make of the case the fore- facts going of is sufficient. outline filed a Respondents have motion to dismiss appeal because apрellant’s comply 15; with our Rule requires failure of which distinctly allege brief “shall appellant’s -the errors com- contain “(2) court”' and shall in by the trial addition mitted order, points- on, statement, in relied numerical with citation By 16 the Rule thereunder.” failure of an- of authorities (and others)- comply with Rule-15 certain a civil case to in results appeal option in dismissal of the or, respondent, at the con- tinuance of the cause. “Assignments his brief appellant following makes
Errors:”
“1. giving The in Court erred its instructions in the nature plaintiff’s demurrers at the in close case chief. ‘ ‘ take requiring plaintiff The Court erred in an involun- tary chief, upon at the close of the case nonsuit giving аt Court’s instructions the nature demurrers the close the plaintiff'^ of. case in chief. . applied'
“3. That action Court the law of. case, against the the-evidence in set out in instruc- this law as given by tions Court demurrers at the close nature the.plaintiff’s,, case chief.” assign- verbatim,
. out, Under he and .Authorities” sets “Points 1, following forty ment No.- it with a.list of cases. Then follows repetition assignments similar each this state- after “ point No. under Appellant cites thе cases cited same ment^: 1.” “assignment of preceding a statement of facts Except errors”, attempt No is- made to out such the entire brief. nor assertions he makes appellant’s reason or reasons indicate, any of cited the numerous applicability cases any question The case involved particular or issue in the ease. given questions. may in- peremptory have several The opinion negligencе on the because.it was structions that.no shown, it believed that been or because part defendants had law, guilty been, plaintiff as matter under evidence had the. questions contributory negligence, fault. he alone or.that *4 kind or char- guard or the maintain a of to right- and Elliott’s right city’s of the thereof, grass plot, for and protection acter the case. In circumstances permit him.to do so.were issues in to: .these us, interpretation, rulе, most liberal given our to that it seems require appellant something to of more definite held should be in that court erred in. the brief specific merely a statement the. than with by no a list of- cases followed giving peremрtory instruction tfie they apply. supposed are to of or to what indication how issues comply appellant with to dismissing appeal for an of In failure Co., 156, 279 Mo. Ins. Natl. court, in Frick v. Millers’ 15 this Rule .'“This rule works no undue hard said: 851, 855, well W. 158, 213 S. followed, time saves this court much appellant, but when ship upon is,well-nigh rule in reviewing case. In fact such in labor ’ ’ work. dispatch appellate proper of dispensable 173, 172, 738, Mo. 46 S. Strodtman, 329 Aulgur v. W. court said: distinctly state appellant am-assignihent > should of errors '“In they Though separately alleged, upon for reversal. errors relied
1013 frequently broadly appear expressed a motion trial. in for new presentation generality doubtless such sub- because that 2 15 requires appellant particu- division Bule further above by furnishing points statement, order, larize ‘a in numerical ” on, with relied citation authorities thereunder.’ requirement particularization The cоurt that further said frequently emphasized, in the of points statement relied on had been citing quote assignments cases. For illustration we some of the with dealing Aulgur case, the court which was follows: “ overruling ‘I. in plaintiff’s exceptiоns Court erred to the fhe in said report every Beferee’s cause and each and them. one of
“ refusing every ‘II. in The Court sustain each one erred exceptions complainant report. to the Beferee’s ‘‘‘ III. decreeing The Court erred in that defendant entitled was judgment decree and on cause of action. “ ‘IV. in report. The Court erred approving Beferee’s ‘“ V. The court judgment erred because the are dеcree ” the evidence.’ equally general. There were It was assignments, several other ‘1 held Even if as an each the above be deemed sufficient could assignment of it error, apparent general serve that each too specification point of a within statement of a on relied meaning 15, requires our which a statement Bule in numerical ’’ points assignment relied on errors. order addition to Co., 389, Mo. Scott et al. v. Pac. Railroad Mo. (2d) 834, 840, general while a assignment W. said that giving good 10” “the court erred No. as an Instruction assignment “standing error, comply it does not alone with our allege distinctly not Bule does what the vice nor on instruction is which relies.” foregoing applica- cases others of like tenor illustrate the precise 15. While none of them present tion our situation Buie here, viz., have a case wherein the trial court directed a verdict rеquires defendant, pleadings examination which presenting, Aulgur perhaps, nearly par- case the most evidence—the *5 yet think the reason and the rule allel exemplified situation — justify those cases similar appliеd interpretation circumstances of instant in the case. application particularly assignment discussed No. 1. Of We have say point No. 2 is in is effect but others it sufficient No, repetition, equally 1,- general, anything, No. if it means any general obviously is event is too and indefinite same. point. as a opinion statement of a motion onr to dismiss the appeal so appeal must be ordered and the sustained. dis- Bohling, GO., missed. Westhues concur.
PER opinion by -Cooley, -adopted foregoing C., CURIAM: The All the-opinion judges court-. concur. Appellant. 777. Leonard W. v. Brown, State Two,
Division November Gib.bamy Charles appellant. E. K. D. Cross William n Barnes Boy McKittrick, Attorney General, W. and Wm. Attorneys Orr Sawyers., General,- Assistant for respmident. charged, by WESTHUES, Appellant was information C. Gentry County, Circuit Missouri, with' the crime Court