122 Mo. App. 65 | Mo. Ct. App. | 1906
This cause was originally pending in the circuit court of Knox county where on trial the plaintiff recovered a. verdict which the court set aside on defendant’s motion. The plaintiff appealed from the action of the court in setting aside the verdict in her favor to the St. Louis Court of Appeals. The case is reported in the 104 Mo. App. 45. As the decision on the said appeal does not affect any question. now before us, no reference is necessary to what was there decided. After the case was remanded, the venue was changed to Adair county, another trial had and the plaintiff again obtained a judgment from which defendant appealed to this, court.
It is alleged in plaintiff’s petition that at night on or about the 11th day of October, 1900, in consequence of a defective sidewalk negligently maintained by defendant on one of its principal streets, she was while walking over it thrown down and severely injured. She alleges that while passing over said sidewalk on the east side of Main street in the defendant city, at a point immediately north of the gate which opens onto said sidewalk from the residence of P. A. Lycan, her husband stepped on the end of a loose board in the sidewalk which caused it to fly up and she, while in the act of stepping, caught her foot under the board and was
The defendant answered with a general denial and alleged contributory negligence upon the part of the plaintiff.
The evidence upon the part of plaintiff tended to support all the allegations of her petition, The defendant’s evidence was to the effect that the walk was in a reasonably safe condition and that if there was any defect in the same the defendant had no notice of such defect. It produced evidence tending to show that plaintiff was familiar with its condition and that if she was injured it was the result of her own negligence. In fact, every issue raised by the pleadings was contested. In order, however, to pass upon certain questions raised by appellant, it will be necessary to state certain facts more fully in the progress of this opinion.
One of the points urged by the defendant is that the evidence does not support the allegations of the petition, viz.: the petition alleges that the defect in the walk that caused plaintiff to fall was immediately north of the gate that opens onto the street from the residence of P. A. Lycan. The evidence showed that the walk was
The evidence showed that the plaintiff had sometime previously fallen on the steps of her home. Defendant introduced evidence tending to shoAV that plaintiff’s injuries were caused by such fall and not the fall upon the sideAvalk. The plaintiff in order to rebut this evidence introduced among other witnesses Drs. Brown and Jurgens. Dr. Jurgens testified that he was a graduate of a medical school and had practiced medicine and surgery for about nine years. The court admitted him to testify as a medical expert. On cross-examination, he stated that: “I am thirty-three years old. I am a general practitioner to some extent, however, I give more attention to surgery. I do not claim to be an expert on the subject of nervous diseases.” As the evidence proved that plaintiff was suffering from a nervous disease, the defendant moved the court to strike out the doctor’s evidence, which the court refused to do. The action of the court in this respect is assigned as error.
We think it must be conceded that the court is the authority to determine whether a witness is an expert and not the Avitness himself; otherwise, the witness
The question was asked the expert witness in substance, if he would attribute plaintiff’s injuries to the result of her fall on the stairs or the fall on the sideAvalk. He answered he Avould attribute them to the latter. The defendant objected to this question and answer, but its objection Avas overruled. In this, the court was in error. The plaintiff seeks to justify the ruling of the court, but without success. The conclusion obtained from the expert upon the question Avas the matter the jury was to decide; therefore the ansAver was an invasion of the province of the jury. The.question is fully discussed by Gantt, J., in Wood v. Railway, 181 Mo. 433. The authorities on this question are too numerous to mention. But, notwithstanding it was error, defendant has waived it as a matter of review by this court by reason of his failure to call attention to it in his motion for new trial.
What has been said of the expert evidence of Dr. Jurgens applies also to that of Dr. BroAvn.
The defendant asked certain Avitnesses if the side-Ava-lk “Avas in a good condition,” or “was a good sideAvalk,” which the court did not permit them to answer. The plaintiff objected to the introduction of this evidence Avithout assigning any reason therefor. Of this action of the court defendant complains. The assertion
The plaintiff, over the objections of defendant, introduced one of its ordinances relating to the duties of the street commissioner. The objections were, that the ordinance had been repealed and that some of its sections were not relevant to the -issue. It did not appear that it had been repealed. The object in introducing- the ordinance was to show that it was the duty of defendant’s street commissioner to inspect, among other matters, the sidewalks of the city, and to report their condition monthly to the board of aldermen. In order to understand the scope and effect of the ordinance, it was necessary to read it all to the jury. It is true that in some respects the duties imposed did not relate to sidewalks, but for that reason they could not have influenced the minds of the jury against defendant. Defendant makes many objections to the ordinance here that were not made in the court below. Besides, the objection was too indefinite. The defendant should have pointed out to the court such parts of the ordinance it deemed inadmissible. [O’Neill v. Kansas City, 178 Mo. 91.] The defendant has discussed many objections to the admissibility of the ordinance, but, as these objections were not called to the attention of the trial court, we refrain from further notice of them.
Another objection is that the allegations of the pet-iiton of notice to the defendant of the defects of the side
Many other points are raised, which are immaterial, the greater number of which were not called to the attention of the court on the trial. It is not the duty of this court to notice points and arguments made by counsel, which do not properly belong to the case, or which are of such a character, if considered, could throw no . light on its merits.
Affirmed.