65 Mo. App. 301 | Mo. Ct. App. | 1896
This is an action to recover damages from the defendant for injuries sustained by the plain
The first assignment is that the evidence is not sufficient to warrant a recovery. The argument in support of it is that the evidence conclusively shows that the defect in the plank was hidden, and that its discovery required minute inspection, and that, as there was no evidence that the city authorities had actual notice of its condition, there could be no liability. There would be merit in the contention, if the facts were as stated. On both propositions of fact the evidence was conflicting. While the evidence tended to prove that the decayed portion of the plank was mostly on its underside, there was proof that one end of it had rotted entirely away and was loose from the stringer, although partly resting on it. There was no evidence that the city authorities had knowledge of the defective condition of the particular plank, but there was abundant proof that the entire sidewalk in front of the premises where the accident occurred was in a very bad state of repair, and that several of the planks were missing, and that this condition existed for several months prior to the accident. One of the plaintiff’s witnesses testified that, one or two months before the accident, he notified the street commissioner of the city of the bad condition of the sidewalk, and that no effort was made to repair it. According to the testimony of that witness, the street commissioner was
The evidence tended to prove that the premises, in front of which the accident occurred, were known as the Phillips property and that the house was painted red. Complaint is made of the admission of the testimony of W. J. York. He testified that he notified Coombs, the street commissioner, that the sidewalk in front of the “red house” on Commercial street was very much out of repair. He also stated that he referred to the property as belonging to Coombs, as he thought at the time that he was the owner. Coombs did own the adjoining property on the same street. It is impossible that Coombs could have been in doubt as to the property referred to by York.
Coombs was examined as a witness for plaintiff, and the court permitted plaintiff's counsel to interrogate him concerning the condition of the sidewalk in front of his premises as compared with the sidewalk in front of the Phillips property. The evidence was not prejudicial, as the witness testified that both walks were in good condition.
There is an ordinance of the city which makes it the duty of the street commissioner to inspect all of the sidewalks in the city as often as once in each month. The circuit court committed error in permitting the plaintiff to read this ordinance in evidence, but the defendant could not possibly have been prejudiced as the street commissioner, who was the plaintiff's witness, testified that he performed the duty imposed by the ordinance in respect to the sidewalk in question, and there was no proof to the contrary.
At the close of the defendant's evidence its counsel
Einding no error in the record, the judgment of the circuit court will be affirmed.