110 Mo. App. 653 | Mo. Ct. App. | 1905
— Plaintiff, claiming to have been seriously injured on one of defendant’s sidewalks, brought this action for damages and prevailed in the trial court.
There was evidence tending to show that she fell from a defective sidewalk, while passing over it, in the exercise of ordinary care. The evidence further tended to show that plaintiff suffered severe and permanent injury on account of the fall. In our opinion the case made by the plaintiff justified the trial court in submitting it to the jury.
But there are several serious objections to instructions given at the instance of plaintiff. Instruction numbered one in express terms made it necessary that the sections of the sidewalk should be so “securely and
It is suggested that while the instructions may be faulty in the respect mentioned, yet they are cured by others given in the case, especially in view of what plaintiff considers the great preponderance of the evidence as to the condition of the walk. We do not think so. In our opinion the plaintiff’s instructions tended to exaggerate the conditions against the city to such a degree as to demand a new trial.
The further error appears in the instruction in referring to character of injuries which plaintiff did not receive. It frequently happens that there is more set out in a petition describing the injury than the evidence subsequently substantiates. Therefore, while the instruction should not, in any case, go beyond the petition, it should not go so far as the petition unless the evidence has given support to the allegations therein. The juries of the country have never been accused of parsimony in measuring damages against a city and it is, therefore, unfair, as well as a legal impropriety, to attempt to aggravate the plaintiff’s case
An instruction offered by defendant was refused which, while in effect, informing the jury that they were not bound to accept the testimony of experts (the physicians) who were introduced, yet they had no right to disregard such testimony merely for the reason that it was given by experts. It has been repeatedly ruled by the Supreme Court that it was proper to give an instruction to the jury that they were not bound by the testimony of experts. [Hoyberg v. Henske, 153 Mo. 64; St. Louis v. Ranken, 95 Mo. 192; Hull v. St. Louis, 138 Mo. 618.] In view of that rule we are of the opinion that defendant was entitled to the converse as embodied in the refused instruction. We are not willing to say that the giving of such an instruction would, in all instances of expert testimony, be required; but in the circumstances of this case, we believe justice demanded it and that it was error to refuse it.
Other instructions are criticised, but we do not consider the criticism of substantial merit.
The judgment is reversed and the cause remanded.