120 Mo. App. 190 | Mo. Ct. App. | 1906
The plaintiff fell upon one of the defendant’s sidewalks and suffered injury to her damage. She brought this action therefor and prevailed in the trial court.
The petition charges that the defendant at a certain designated place negligently permitted its sidewalk to become and remain out of repair, and permitted some of the planks and boards of which it was constructed to become rotten and broken and unnailed, so that there existed holes in the walk. That said boards became loose and uneven, etc. The plaintiff was injured by stepping upon, or “through” a rotten board. Plaintiff was asked as to the condition of the boards with reference to any of them being loose or unnailed. She answered that there were boards not nailed. We can see no possible objection to the evidence. It bore directly in support of the allegations of the petition and of her injury, besides showing the general condition of the walk at that place of which the defendant was charged to have had notice. [Miller v. Canton, 112 Mo. App. 322.]
Objection is made to the failure to define the issues on plaintiff’s part in instructions for her. It is said that there is no instruction defining negligence, and none advising the jury that the city should have had notice or knowledge of defect in the sidewalk, .and that after such knowledge that there should have been reasonable time to have made repairs. On these subjects there were two proper instructions, prepared and offered by the plaintiff, but the defendant objected to either of them being given and yet contends that one, at least, was wrong. The court sustained the objections by refusing them. If they had been given, as they should have been, there could not have been the criticism now made. To permit the defendant to succeed in convicting the plaintiff, or the trial court, of error which it asked to have committed would be an injustice which we cannot allow.
The instructions given fpr the defendant covered every phase of the case which was supported by evidence. And when all for either party are considered, there is scarcely a possibility that the jury were misled or confused as to the facts, or misdirected as to the law. Those refused for defendant which were not covered by those given were not supported by the evidence.
We do not feel that we would be justified in ordering a remittitur on account of excessive verdict. It was fifteen hundred dollars; and from plaintiff’s standpoint of evidence, which we must accept, since it is sanctioned by the jury, it was not too much. The judgment was for the right party and is affirmed.
