Huff v. City of Marshall

97 Mo. App. 542 | Mo. Ct. App. | 1903

ELLISON, J.

— This is an action for damages resulting from personal injuries suffered by plaintiff in falling on one of the sidewalks in the streets of defendant. The judgment in the trial court was for the plaintiff.

Since the verdict was for the plaintiff we will state what the evidence in her behalf tended to prove. It appears therefrom that the hoard sidewalk at and along the place where she fell was in an unsafe condition by reason of the hoards being nailed to stringers which had become old and rotten. That the walk had been in that condition for such length of time that the officers of the defendant city knew it, or might have known it if they had been diligent in that regard. Plaintiff also knew the walk was out of repair, hut she did not know that it was in such state that it might not be used. On the day of the accident plaintiff was passing along the walk immediately behind some ladies who were going in the same direction when they met a gentleman walking in the opposite direction. In his attempting to pass these ladies he stepped on the end of one or two of the boards, which caused them to suddenly rise up. so- immediately in front of plaintiff as to cause her to fall over them and hurt herself seriously. At the time she was not looking down at the walk, but was carrying herself so that her vision was about as it is with ordinary pedestrians.

There can be no serious objection to the statement that the state of facts just indicated made a prima facie case for the plaintiff. The mere fact that she knew the condition of the walk, was not a bar to her recovery; it is only a matter to be considered by the jury in passing on her negligence. Flynn v. Neosho, 114 Mo. 569; Chilton v. St. Joseph, 143 Mo. 202; Squires v. Chillicothe, 89 Mo. 226. The evidence does not put this case in that class where a person voluntarily walks into a place so obviously and glaringly dangerous as that no prudent person would have undertaken it. The testimony of witness Sparks showing that the walk had been out of repair beginning back as long as three years, was asked to be stricken out, but no ruling was made thereon. His subsequent statement of specific repairs was ruled out. But there was other evidence hereinafter mentioned which showed the bad condition for a length of time sufficient to establish negligence of the city.

Counsel for the city, however, takes serious exception to the instructions given at plaintiff’s request. We have examined them and do not believe they are subject to any just or substantial criticism. It is claimed that plaintiff’s instructions one and two omit the hypothesis of plaintiff’s own negligence, and yet direct a verdict for her based alone on defendant’s negligence and her injury. Instruction one especially requires the jury to find that plaintiff was “without fault or negligence,” and although instruction two does omit the hypothesis of plaintiff’s ease, yet as it was pointedly included in numTber one, and as numbers three and four were devoted especially to the subject of plaintiff’s negligence and want of care, and as all her other instructions included that proposition, the jury certainly must have understood that it was necessary for them to find that she was not at fault before giving her a verdict. Not only was the hypothesis thus made prominent and specific in plaintiff’s instructions, but in defendant’s series the jury are again cautioned in that regard.

Some of the instructions offered by defendant and refused might have been proper enough had the points presented in them not been covered by those which were given. But certain it is, that taking the instructions given, as a whole, the issues as presented by either side were fully and plainly presented; and the jury could not have misunderstood them. This is all that is required.

There was ample evidence tending to prove the bad condition of the walk. And there was evidence from which knowledge of its condition by the city could be reasonably and legitimately inferred. The proof showed its bad condition for a long space of time. One witness put it at “six months or more,” while others showed it to have been in need of repair for a yet longer period. Objection was made to the scope of this evidence and that it was not confined to the specific place where plaintiff fell. We think the court kept the witnesses within proper bounds' in, this respect. The object was to show notice on the part of the city and it is unreasonable to suppose that the inquiry should be limited to the very board which caused the accident. The evidence was confined- to conditions in front of the premises where plaintiff fell andVithin a short space along on that part of the walk.

The verdict was for $3,000 and it is insisted that it is excessive. We do not think so. If credit is to be given to the evidence in plaintiff’s behalf her injuries were of such painful and serious character as to fully justify that amount and we feel that we are not justifietl in interfering, especially since the verdict has received the sanction of the trial judge.

The case seems to have been earnestly contested and we have gone over the entire record with a view to ascertaining if anything occurred at the trial which would justify us in overturning the verdict of the jury and the action of the court thereon. We have found nothing which we deem of sufficient substance to authorize our interference, and, hence, affirm the judgment.

All concur.