| Mo. | Nov 29, 1911
The respondent brought this suit in the circuit court of the city of St. Louis, to recover $10,000, against said city, as damages for personal injuries sustained by her while driving along one of the streets thereof, through the alleged negligence of the city, by permitting said street to become and remain in an unsafe and dangerous condition to persons driving thereon.
The facts of the case are practically undisputed, except as will be hereafter noted, and are substantially as stated by counsel for respondent, namely:
“The plaintiff, whose age was forty-five at the time of the trial of the case, was on June the 9th, 1904, on her way home between nine and ten o’clock at night, driving a horse attached to a small spring wagon on Euclid avenue in the city of St. Louis, Missouri, crossing the Wabash bridge and passing on about two hundred feet to the terminus of Euclid avenue where it meets and merges into Kingshighway boulevard, which runs due and straight south beyond the said Euclid avenue. The respondent having arrived about ten feet from the paved end of Euclid avenue and on Kingshighway boulevard, her horse, going in a trot, stepped into a hole or deep1 depression in the street, caused by the abrasion and wearing of heavy teams, vehicles, mud and rain on said Kingshighway boluevard, and the fore wheel of her vehicle entered into it with such suddenness and force 'as to throw her out ovgr the horse’s back onto the ground and break her right arm and left arm in two places, causing her much suffering and pain and rendering the said limbs almost useless. While the plaintiff was g’oing south on Euclid avenue and on Kingshighway boulevard, a certain work car, with more noise than other cars, closely followed her, and stopped when she was thrown out and its motorman and conductor ran to her assistance, picked her up and placed her on the grass upon a matress she had in the wagon, where she remained*691 until half past eleven o ’clock that night, and then was taken in a city ambulance to its hospital and was there seventeen days. For eight months the plaintiff had to be fed as a child of tender years and was unable to dress herself, had to have her arms reset and could not use them for eight months and was under the care of a physician over a year. At the time of the accident the plaintiff was engaged in the laundry business, and because of her misfortune it ceased audits profits of eighteen dollars a week also. Her nurse hire amounted to $219 and her physicians’ bill to $125.”
There was an abundance of evidence tending to show that the street in question was a public thoroughfare of the city, and none to the contrary; also that the hole in the street was dangerous, and had existed for a sufficient leng*th of time prior to the injury to have enabled the city to have discovered and repaired the same, had its servants and agents exercised ordinary care in that regard.
A trial was had, and the jury, under the instructions of the court, found for the plaintiff, and assessed her damages at $1500', and after taking the proper preliminary steps, the city appealed the cause to this court.
I. Counsel for appellant first complain of the action of the trial court in refusing to sustain a demurrer to respondent’s evidence.
This complaint is predicated upon the contention that there was no evidence introduced tending to show that Kingshighway boulevard, or Euclid avenue, at the place of the injury, were public streets, or were opened by the city to the public for travel.
There is no merit whatever in this contention. The ordinance of the city, introduced in evidence, in many ways recognized their existence as such; and the parole testimony of the witnesses shows that they
In fact there was no evidence of any consequence to the contrary.
Under the uncontradicted evidence of both parties, we are unanimous in the opinion that the court should not have submitted that question to the jury, but should have told them that both of said streets were 'public thoroughfares of the city.
What we have here said also disposes of the objection urged against the first instruction given by the court on behalf of respondent, which, it is contended, does not define the term “public highway” and ignore's the defense that the portion of the street, though belonging to the city, had never been opened for travel,
II. The second instruction given by the court on behalf of the respondent is complained of by counsel for appellant, for the reasons stated: “This instruction makes no mention of the particular rut which is alleged to have caused the accident, but authorized the jury to return a verdict for plaintiff if they believed that the road was in an unsafe and dangerous condition” at any other place.
The objection to that instruction is predicated upon a mistake of fact. The instruction in that regard, reads as follows: ‘ ‘ The court instructs the jury that if you believe from the evidence that Kingshighway, near its intersection with Euclid avenue, in the city of St. Louis, at the point mentioned in the evidence, was on the 9th day of June, 1904, a public street of said city as mentioned in the instructions, and was on that day in an unsafe and dangerous condition for travel thereon,” etc.
The hole mentioned in the petition and which caused the injury, was located at the point in the street mentioned in the evidence, as above stated.
III. Instruction number three given for respondent is also complained of.
The vice of that instruction -complained of, is couched in the following language: “If the jury believe from the evidence that Kingshighway, near its intersection with Euclid avenue, at the point mentioned in the evidence . . . has been and was a public street in the city of St. Louis, belonging to said city as a public street, for more than ten years prior to June 9th, 1904, and that_during all that time it had been and was used by the public for travel in vehicles, and that it was a public necessity, that said street at said point mentioned herein should be in a reasonably safe condition .for travel, ’ ’ etc.
This objection is of kindred nature to the one mentioned in paragraph one of this opinion. There, as here, the court was imposing upon the respondent the necessity of proving to the satisfaction of the jury that the street in question was a public highway. We there held, that under the uncontradicted evidence in the case the court should have declared, as a matter of law, that the street was a public highway, and under that view of the law it was wholly immaterial whether the jury found it to be such or not, and all instructions given by the court submitting that question to the jury were error in favor of the city and against the respondent, and if error, the appellant is in no position to complain.
The evidence shows that one physician charged her $125, and that she had another, but he so far had presented no bill for his services.
The evidence also showed that she paid $219 for nurse hire.
In the same connection respondent was asked.
* ‘ Q. What did you pay for medicine ? A. I didn’t require very much medicine except when I was taken with blood poison.”
In mentioning the elements of damages that the jury might take into consideration in fixing the amount of their verdict, the instruction under consideration, among other things, told them that -they might consider “any expenses she may have incurred for medicines, medical attention and nursing,” etc.
In the light of the evidence set out, we are of the opinion that this objection is not well founded. It is true her evidence shows she did not need much medicine, and presumably she did not incur much of a debt on that account, yet we have no right to presume, under that evidence, that the jury allowed'her anything more than a nominal sum therefor, which they had a perfect right to do.
The only surprising thing to us is that the verdict of the jury in this case was so small. The respondent had her right arm broken in one place, and her left arm broken in two places; she was confined to the hospital for seventeen days, and was perfectly helpless for eight months; could not feed or wait upon herself during that time. She incurred $219' for nurse hire, and more than $125 for medical treatment. Yet the jury allowed her only $1500.
Finding no error in the record, the judgment of the circuit court is affirmed.