25 Mo. App. 317 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This was an action for damages for a personal injury •sustained by the plaintiff, in consequence of breaking-through a bridge on one of the principal streets of the town of Lutesville, whereby he was thrown from his ■saddle, dragged a considerable distance by his foot, which
I. A serious question is encountered in the ruling of the trial court in allowing the plaintiff, testifying in his own behalf, to give Ms opinion as to how much he had been damaged by the injury. His answer was, “Five thousand dollars.” This ruling was clearly erroneous. It was for the jury, and not for the witness, to give an •opinion on the subject, after hearing all the evidence. Railroad v. Kelley, 58 Ga. 107; White v. Stoner, 18 Mo. App. 540, 547; Belch v. Railroad, 18 Mo. App. 80; Winkler v. Railroad, 21 Mo. App. 99; s. c., 21 Mo. App. 109. But, as the plaintiff was of opinion that he had been damaged five times as much as the amount for which he sued, and more than thirty times as much
II. There is no force in the objection that the plaintiff failed to prove that the defendant had been duly incorporated. The defendant was sued as a corporation, and the allegation that it was a corporation was not denied on oath, as required by .the act of March 15, 1883, amending Revised Statutes, section 3653. The view that the statute applies only to private corporations is not sound. The reason of the rule, which prohibits the fact of the existence of a de facto corporation from being contested in a private action of this kind, and which prescribes that it can only be done in a proceeding by quo warranto by the state, applies with equal force to municipal as to private corporations ; and our supreme court, in stating and applying the rule, cite adjudications in respect of both kinds of corporations, indifferently. St. Louis v. Shields, 62 Mo. 247, 251, and cases cited; Fredericktown v. Fox, 84 Mo. 59, 65, and cases cited. Aside from the failure to raise the question properly on the record, the evidence amply showed that the defendant had been incorporated by an order of the county court; that it had accepted the order of incorporation ; that it had notified the county court that it had. assumed control of the streets and alleys within its limits ; and that it was, at the time of the injury, and long before, in the full exercise of corporate powers ; the law will not' allow the inhabitants of a town to be an incorporation for every purpose beneficial to them, and.
TTT- The proposition that the defendant is not liable, because it had not built the bridge which broke, and because it had never, by ordinance, laid out the street as a highway, or authorized its repair, is equally untenable. The evidence shows that the town was platted, and the streets and alleys dedicated, under the statute relating to the making and recording of town plats, in the year 1869 ; that the town was thereafter incorporated by the county court, which order" of incorporation, as already stated, was accepted; that the town proceeded to notify the county court of its assumption of jurisdiction over the streets within its limits; that the street, of which this bridge was a part, was one of the streets so platted and dedicated; that it had long been used as a public highway, and was one of the principal thoroughfares of the town ; that the town had authorized its street commissioner to repair, according to his discretion, all the streets within the town limits; that, in one such order, this particular street had been mentioned; that this particular bridge had been so repaired or reconstructed, after a washout, by the street commissioner, and that he had been paid for it by the town board. In all this there was the amplest evidence whereon to base the liability of the defendant to a traveler sustaining injuries through the negligent non-repair Of this particular street or bridge. It is a mistaken conception that, in order to a recovery in a'case of this kind, the plaintiff must show that the street has been formally laid out by ordinance. It may be equally established by evidence of a dedication, acceptance, and user as a public highway. Beaudean v. Cape Girardeau, 71 Mo. 396. Nor is the principle that a municipal corporation is not liable, in damages, for the non-exercise of its quasi sovereign, or legislative, functions, such as the opening and improving of a new street, where none existed before, at
IY. The instructions, taken as a whole, submitted the case fairly to the jury, and in a manner, perhaps, more favorable to the defendant than to the plaintiff. The court gave eleven instructions for the defendant, and refused four. Those which were refused were properly refused, for the reasons stated in the preceding paragraph.
The judgment will be affirmed. It is so ordered.