35 Mo. App. 97 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is an action for damages growing out of personal injuries received by Nat. N. Kinney, deceased, on the twelfth day of September, 1885, in consequence of an alleged neglect and failure on the part of defendant to keep “ South alley, ” in the city of Springfield, in proper repair, and in a reasonably safe condition for the use of pedestrians and others traveling or passing along said alley. The petition averred substantially, that South alley was a public thoroughfare and was a paved street, and generally used by the public as a street or pass-way for all kinds of travel. That defendant had full control and management of said alley. That for some time prior to the twelfth day of September, 1885, said alley had been out of repair and in an unsafe condition, in this : That along the sidewalk on the south side of said alley there was an opening or hole, about two feet wide, three feet long and three or four feet
Defendant filed an answer containing a general denial and also averring contributory negligence by plaintiff. There was a reply denying any contributory negligence by plaintiff. There was a trial by jury, resulting in a verdict and judgment for plaintiff for fifteen hundred dollars. Defen dant, having unsuccessfully moved for a new trial, and in arrest of judgment, brings the case to this court by appeal. Since this appeal was granted, the plaintiff has died, and Maggie J. Kinney, the administratrix of his estate, has entered her appearance in this court and has been substituted as a party plaintiff.
Plaintiff, on the trial, introduced evidence tending to prove that South alley, on the twelfth day of September, 1885, and for several years previous, had been, and was, a thoroughfare or public street, and was used by the traveling public for vehicles and also pedestrians. That in 1885, a building was constructed by Dr. Watson, along the south side of said alley, and that along the side of said alley where said building had been erected, there was a sidewalk, about three feet wide, constructed of brick. That opposite the windows of said building, there were coal or air holes left in said sidewalk, and over these holes, there were iron gratings fastened into the brick and stone work in said sidewalk.
Defendant’s testimony tended to show that South alley extended from South street to Jefferson street, a distance of two squares. That there was a saloon, blacksmith shop and wagon yard on this alley; that there were no other sidewalks on the alley, except the one extending along the side of the Watson building. That this sidewalk was built by L. T. Watson, the owner of the building. That all of said alley was free from obstruction, defects or excavations, except the opening or hole established by plaintiff’s testimony. That this opening, on the night that plaintiff was injured, was covered by a plank eight or nine inches wide, and about five feet long, and by a box three feet long,. two feet wide, and three or four feet high. That after said box and plank had been so placed, the defendant had no knowledge of its removal. That at the place where plaintiff was injured, there was sufficient light to enable any one exercising ordinary care and prudence, to see and avoid the excavation. And defendant also introduced some testimony tending to show that at the time plaintiff was hurt, he was under the influence of liquor.
It was very clearly established by the testimony that South alley is a public street and thoroughfare, and had been used by the public for many years for all kinds of travel. That there are places of business located on and fronting this alley, which gives it more the character of a street, than an ordinary alley. That in consequence of this, the alley was not only used as a passway for vehicles, but was a general passway for pedestrians. It is a conceded fact that there was a hole or opening in the Watson sidewalk. That this opening-had existed for some time prior to the twelfth day of September, 1885, but just how long is left in doubt. However, this is immaterial, as the testimony showed that the then mayor of the city had actual knowledge of the existence of the opening, and knew of it for some time previous to the accident.
The real controversy between the plaintiff and defendant is, whether the opening, at the time plaintiff fell into it, was sufficiently covered and protected, or whether, on the day of the accident, defendant had sufficiently covered the opening, and that this had been removed without defendant’s knowledge, and whether there was any contributory negligence by plaintiff. There wrere other issues but they were of minor importance.
The defendant assigns for error in this court: (1) The refusal of the trial court to strike out plaintiff’s amended petition. (2) That the court refused defendant a continuance. (8) The court committed error in refusing to appoint a commission of physicians to examine plaintiff as to the nature and extent of the injui-ies of which he complained. (4) That the court permitted plaintiff to introduce incompetent and irrelevant testimony. (5) That plaintiff ’ s instructions did not properly declare the law. (6) That the court committed
I. There is no merit in defendant’s objection that the cause of action was changed by the amended petition. The same cause of action is stated in both petitions.
When the amendment was made the defendant applied for a continuance on the ground that the amended petition presented new issues and that defendant was not prepai’ed with its proof to meet them. This application was made and sworn to by the city attorney. This court has often decided that the granting or refusal of a continuance rests largely in the discretion of the trial court, and where it is not clearly manifest from the record, that this discretion has been abused the appellate court will not reverse a judgment on that account. It is not necessary to cite authorities on this question. We have examined the record, and are not prepared to say that the circuit court erred in refusing defendant’s application.
Defendant also assigns for error the refusal of the court to appoint a committee of physicians to make personal examination of plaintiff, touching the nature and extent of the injuries complained of.. The application was made on the fourteenth, and the case was called for trial on the fifteenth. The case was set for trial on the twelfth, but the court was behind with the call of the docket. The court overruled the application, stating as a reason that the application ought to have been made sooner. That the granting of the application would delay the trial of the case. The question of the right of the defendant, to have such an order made, hag
II. The court gave ten instructions for plaintiff, refused thirty-three asked by defendant, and in lieu of those refused, the court gave on its own motion eleven others, presenting defendant’s theory of the case.
We had occasion at this term of the court, in case City of Hannibal v. Richards, to condemn the practice adopted by some attorneys, in presenting a multitude of instructions in a case, and we are not inclined to pass this case by, without again entering our protest against such a practice. The defendant in this case presented thii’ty-three instrxxctions, and the trial court was justified in refusing them all, on account of the number
The court in substance instructed the jury that, before plaintiff could recover, it devolved on him to show to the satisfaction of the jury that South alley was a public street or passway, and was under the control, and management of defendant; that there was an opening in the sidewalk on this alley as set forth in plaintiff’s petition, and that this opening rendered travel incident to the alley dangerous; that defendant had notice of the defect prior to the accident and failed to make reasonable repairs or place sufficient covering or guards to protect and guard the same ; that plaintiff without any negligence on his part and while in the exercise of ordinary care stepped into the opening while passing along said alley at night, and that on account of the darkness plaintiff was unable to avoid the danger by the use of ordinary caution and diligence. And the court further instructed the jury that it made no difference whether the sidewalk was on the alley or on the' adjoining land of Watson, and that it mattered not that
Instruction number 8 \ is as follows : “If the jury believe that the box placed on said hole, as testified to by the witnesses, was not fastened down but was loose and liable to be removed at any time from off said hole, and if the jury further find that said box was so removed at different times, for a period of several weeks, then such box did not constitute a proper covering for said hole, and would not relieve the city from the charge of negligence,” etc., etc.
Instruction number 8 is as follows: “If the jury believe and find from the evidence that the defendant was notified of the removal of the iron grating from over said hole on South alley, and that said opening so exposed rendered said alley unsafe for travel, and that the said opening remained in this condition for several days or weeks after the city had full knowledge of the same through its mayor, then the jury are instructed that the defendant would be liable for negligence in failing to keep its said sidewalk in proper repair, if the same was used as a general thoroughfare for traveling, although the jury may further find that the defendant
The court told the jury that if the box placed over the opening by the’defendant was not nailed down or in any way fastened so that it would be liable to be removed, and that said box was so removed, at different times prior to plaintiff’s injuries, then such effort made by defendant to protect the public from the danger would not relieve the city from the imputation of negligence.
The evidence of defendant tends to show that the box placed by defendant’s officers over the hole was about three feet long, two feet wide, and about two feet high ; that the .opening was sometimes covered with this box, and at other times with a loose plank. That this box was not nailed down and during the time there was nothing to prevent the box from being removed, and that it was, in point of fact, several times removed from over the opening. There was no conflict in the testimony, as to these facts.
Negligence is a logical inference drawn from the facts and circumstances established by the evidence in a case. If the facts, upon which the negligence is predicated, are disputed, or where there is a dispute or reasonable doubt as to the inferences to be drawn from undisputed facts, then the question of negligence should be left to the jury. But on the other hand, if the facts are undisputed, or if a certain state of facts are found by the jury, and the facts so found are of such a character, that the inference of negligence to be drawn therefrom would not be a matter of doubt about which reasonable minds would differ, then it is proper for the court to declare as a matter of law that such facts constitute negligence. Tabler v. Railroad, 93 Mo. 79;
Instruction number 8£ may be inconsistent with the other instructions, as claimed by the defendant, by which the question is left to the jury, but the other instructions were more favorable to defendant than defendant had a right to expect. In other words the court erred on defendant’s side of the case.
We think that every possible phase of this case was presented by the instructions given, and we have been unable to detect any error that was prejudicial to defendant’s case.
The defendant has urged before this court many objections to the admission of testimony ; the remarks of plaintiff’s cpunsel in his closing argument to the jury.;
it is so ordered.