Hemphill v. Kansas City, 100 Mo. App. 563

Hemphill v. Kansas City

100 Mo. App. 563 | Mo. Ct. App. | 1903

SMITH, P. J.

Action to recover damages for personal injuries.

The petition, amongst others, contained the following paragraph, that is to say: “That plaintiff on or about July 4th, 1901, and at about 9:30 p. m. of said day, while walking south and along and upon said sidewalk at or near said numbers 1739 and 1741 Holly street, and on which the boards were loose and rotten and the stringers in a loose condition, and in which and at which point there were holes and openings as aforesaid, and while the plaintiff was in the exercise of ordinary care and caution and without said plaintiff having any knowledge of the defective, unsafe and dangerous condition of said sidewalk she stepped into one of said openings between the boards or planks of said sidewalk, and by reason of the loose and defective condition of the boards or planks and stringers of said sidewalk, and that one of the boards or planks in said sidewalk was projecting edgewise above the other boards, one of her feet was caught by said upturned board and caused her to be tripped and thrown with great force and violence upon said sidewalk, causing concussion of the brain, badly sprained her right hand and wrist and broke some of the bones in her right wrist and bruised and sprained her left hand, bruised her right side and injured her internally, causing injury to her stomach and a severe shock to her nervous system, from all of which she has been made sick, sore and disabled, and made to suffer great bodily pain and mental anguish, and will cause her to suffer in the future and her ability to earn a livelihood has been greatly impaired,” etc.

There was an answer filed and a trial of the issues to a jury in the court below, which resulted in judgment for the plaintiff, from which defendant appealed here, assigning as the grounds for reversal that the court erred in its action in giving for plaintiff instructions one, three, four and six. By number one it in*566structed the jury that if it found from the evidence that the sidewalk on the east side of Holly street, between West Seventeenth, street and West Eighteenth street, and in front of lots numbered 1739 and 1741 Holly street of said Kansas City, was on the 4th day of July, 1901, in an unsafe and dangerous condition for travel thereon by the public, and that a sufficient time had elapsed between the time said sidewalk became defective, in case it found it was defective, and the time of the injury to plaintiff, for the city, by the exercise of reasonable diligence, to have discovered and repaired said sidewalk prior to the time of the accident, and if it found that the plaintiff, while lawfully traveling along said sidewalk, in the exercise of ordinary care, was thrown and injured by reason of the unsafe and dangerous condition of said sidewalk, then its verdict should be for the plaintiff.

This instruction correctly expressed the law applicable to the case made by the evidence. Badgley v. St. Louis, 149 Mo. l. c. 133, cited by the defendant, wiil be seen, by reference to it, to be in its facts unlike this, and for that reason it can not be invoked as a guiding precedent. In a somewhat similar case this instruction was impliedly approved by the Supreme Court. Perrette v. Kansas City, 162 Mo. 244. Baustian v. Young, 152 Mo. 318 (l. c. 326), may be cited as an authority also upholding the action of the court in giving it.

The defendant further objects that as the allegation of the petition is that the sidewalk was in a defective, unsafe and dangerous condition — that at the place, therein where plaintiff was hurt, “the boards were loose and rotten, and the stringers in a loose condition, ’ ’ etc., and as the said instruction told the jury that the verdict should be for plaintiff if it found that the sidewalk was at that place “in an unsafe and dangerous condition for travel thereon,” etc., that there was a departure of the latter from the former, and a widening of the issue which was not permissible. Certainly, *567an instruction which enlarges or restricts the issue in an essential particular would he erroneous. Bank v. Murdock, 62 Mo. 70. But as the evidence in the present case tended to support the allegations of the petition, we can not discover that because the said instruction was not as specific as the petition, that there was any departure in the latter from the former, or any resulting prejudice to defendant.

The plaintiff’s third is in theory substantially the same as her first, and what has been said in respect to the propriety of the action of the court in giving it applies with equal force to her third.

The fourth, while a mere abstraction, is nevertheless not erroneous nor calculated to mislead. Nor do we think the plaintiff’s sixth is subject to the defendant’s criticism that it assumes the facts therein referred to.

The instructions, taken in their entirety, fairly submitted the case to the jury whose verdict must stand, and the judgment thereon be affirmed.

All concur.