Hunter v. City of Mexico

49 Mo. App. 17 | Mo. Ct. App. | 1892

Ellison, J.

Plaintiff received serious personal injury on one of defendant’s sidewalks on account of defects therein. He obtained judgment below, which we are askedlto reverse on account of errors at the trial.

I. A great many objections to testimony were made by. defendant which were overruled. It will not be necessary to notice all of these. Sections 12 and 13 of the city ordinances were improperly admitted. They manifestly refer to holes or other dangerous places on private property. They have no reference to the sidewalks or streets of the city.

II. The petition charged that plaintiff was “compelled to spend the sum of $100 in endeavoring to be cured of his said injuries.” The testimony disclosed that he was .attended by several physicians and surgeons, but there was no evidence of what he paid them, or was to pay them, or as to what their services were •worth. In this condition of the case the court instructed the jury to allow plaintiff “all expenses incurred whether yet paid or not, in and about the treatment of his case.” This was error. We decided this precise question in Rhodes v. Nevada, 47 Mo. App. 499. Our attention is now -called to the case of Smith v. Railroad, lately decided by the supreme ■ court, in which the same view is taken. The suggestion may occur that we could order a remittitwr for the medical attention, but it will be noticed that, while the petition claims $100, the instruction places no limit on the amount which the jury might allow for such service.

The judgment must, therefore, be reversed and the cause remanded.

All concur.