168 Mo. App. 56 | Mo. Ct. App. | 1912
The husband of plaintiff in this case was the tenant of defendant, renting from him the upper rooms of an apartment house, in which rooms plaintiff and her husband resided. The lower rooms were rented to another family. To the rear of this apartment house was a yard, at the back of which were sheds and outhouses. A gate or opemngled to an alley. This back yard and the outhouses were used, in common by the several tenants of the apartment house. There was no made walk through the yard, the tenants throwing ashes and cinders from the rear of the house to the back of the lot in muddy weather. There were two sewer or drain pipes between the house and the vaults, one some twelve inches the other some five o.r six inches in diameter. The twelve-inch pipe projected some six or seven inches above the ground and was covered with what is described as a tin tub. The flange or rim of the six-inch pipe was broken off level with the surface of the ground on one side; a portion of it appears to have projected two or three inches above the surface. A loose flat rock was used as a cover for this six-inch pipe. The premises were in this condition when rented.
There is a good deal of conflict in the testimony as to the size and weight of this rock, but that point is not material now. It was in evidence that the rock which was provided for this smaller pipe often became displaced and the tenants and members of their families were in the habit of replacing it over this sewer or drain pipe. Plaintiff testified she had often done that herself.
At the conclusion of the testimony for plaintiff, and again at the conclusion of all the testimony, defendant interposed a demurrer, both of which were overruled. The jury returned a verdict in favor of plaintiff for $1750. Judgment following, .defendant filed his motion for new trial as well as one in arrest of judgment. These being overruled and exception saved, defendant duly perfected appeal to this court.
The errors here assigned are to the improper admission of testimony and the refusal of the demurrers As to the latter, it is claimed that it clearly appeared that plaintiff’s own want of care directly contributed to her injury and prevented a recovery on her part, and further, that it appeared that the property was in the same condition at the time of the letting to plaintiff’s husband as it was at the time of her injury and that she knew it and therefore assumed the risk of using the property in that condition. It is also assigned for error that the court singled out the testimony of a witness and commented on it and had singled out a particular fact in the evidence, thereby giving undue prominence to that fact. It is further contended that the instruction given at the instance of plaintiff as to the measure of damages is erroneous and misleading. For these reasons it is urged that the motion for new trial should have been sustained.
Taking up these assignments in their order, we have to say as to the first one that it is untenable. It is founded on the claim that the physician who attended plaintiff should not have been permitted to testify that she had suffered the internal injury referred to. The averment in the petition as to the damages sustained is broad enough to have let in the testimony
In support of the second assignment of error'on the refusal of the demurrers to the evidence and of an instruction to find for defendant, it is argued th^it the property was in the same condition at the time of the letting to plaintiff’s husband as it was at'the time of
The cause of action pleaded is “that notwithstanding the character of the five-inch vertical pipe or shaft above as described in its manner of construction the defendant negligently and carelessly allowed said .five-inch pipe or shaft to become out of repair and •dangerous, in that the same was allowed to remain •open and unprotected, and that the defendant well Anew, or could have known the same by the exercise of ordinary care, in time to repair the same before the injuries to the plaintiff hereinafter complained of, and that the said five-inch vertical pipe or shaft aforesaid was in the condition above described at the time of the 'injuries hereinafter complained of, to-wit: on the 21st •day of October, 1907.”
We think the negligence charged was practically -covered by instructions given. By one given at the instance of defendant, “The court instructs the jury ■that if from the evidence they believe that the pipe in question was kept covered by a stone and that said ■stone was a reasonably safe covering for said pipe to ■prevent persons from stepping into said pipe when using the yard in question for such purposes to which ■said yard was ordinarily put, then the jury will find for the defendant.” It was further covered by an instruction given at the instance of plaintiff, and on which no error is assigned. By that instruction the ■court told the jury, among other things, that it was the duty of defendant to keep the yard in a reasonably safe condition for the purposes for which such yard was ordinarily used, so that the tenant and his family, while exercising ordinary care in its use, would suffer
With these instructions before them the jury were practically required to pass on the very question on which counsel here assumes there was no evidence. The jury could only have found for plaintiff if they found from the evidence that the pipe in question had not been covered and kept covered by this stone and that the stone was not a reasonably safe covering for the pipe.
It is further argued in effect, in’support of that assignment, that plaintiff cannot recover if she directly contributed to her iniurv. That pronosition is beyond question, and as will be seen by the instruction quoted, given by the court at the request of plaintiff end not here challenged, that matter was sub
The third assignment of error is to the second instruction given at the instance of plaintiff. That instruction, in substance,- told the jury that if they found from the evidence that Edward Kuhn, at the time of the accident and prior thereto, was the agent of defendant for the purpose of looking after and «making any necessary repairs as might be reasonably required on the premises, then the court instructed the jury that if they found and believed from the evidence that Edward Kuhn had knowledge a reasonable length of time prior to the date of the accident that the opening of the pipe was not reasonably well protected to prevent a person who was using the yard for the purposes for which it was ordinarily intended and while in the exercise of ordinary care from stepping
The most serious.and strenuous argument of the learned counsel for appellant, however, is directed to the instruction which the court gave as to the measure of damages. That instruction, numbered 3, so far as pertinent to this assignment of error is as follows:
“The court instructs the .jury that if you find a verdict for the plaintiff you are, in estimating her damages, to consider any ehang’e in her physical condition which you may believe from the evidence resulted from the injury to her; the physical or mental anguish, if any, suffered by her on account of her injuries at the time of and since such injuries, as shown by the evidence, and such damages, if any, as you may from the evidence find it is reasonably certain she will suffer in the future therefrom; and you will find a verdict for such sum as, in your judgment, will under all the evidence, reasonably compensate her for such injuries, including compensation for such sums of money, if any, as the evidence shows she herself has heretofore paid out for medicine, nursing and medical treatment, but not including any amount not already actually paid by her.”
We have very carefully examined the cases cited by learned counsel'for the app.ellant and which they claim condemn this instruction, but are unable to find that it violates any of the fules laid down in any one of those cases. Comparing this instruction with the instruction which was given in Curtis v. McNair, 173
Finding no error to the prejudice of defendant, materially affecting the merits of the case, the judgment of the circuit court is affirmed.