23 Mo. App. 244 | Mo. Ct. App. | 1886
The court instructed the jury that it was the duty of the defendant to have kept the sidewalk in a reasonably safe condition. The defendant’s counsel urge that such was not the duty of the defendant unless she had, in the manner prescribed by her charter, ordered the construction of the sidewalk, and unless, further, there was not in a reasonably safe condition, outside of the sidewalk, sufficient of the street for public use and convenience. The point, then, is made that for the two reasons named the court erred in declaring, as a
It is conceded that, if the defendant had constructed, the sidewalk, it would have been her duty to have repaired it, except only for the second of the reasons named above. The sidewalk was constructed in the street, and with the knowledge of defendant’s officers it was used by the public for purposes of travel for many years before the accident. Under such circumstances it matters not that the defendant did not construct the sidewalk; it was the duty of the defendant to have removed or kept it in repair. So long as the defendant permitted the sidewalk to remain in the street and to be used by the public as a sidewalk, the sidewalk was the sidewalk of the defendant. Salisbury v. City of Ithaca, 94 N. Y. 27; Oliver v. City of Kansas, 69 Mo. 79; Haire v. City of Kansas, 76 Mo. 438.
The sidewalk was the portion of the street set aside for the exclusive use of pedestrians. Oliver v. City of Kansas, supra. And it was the duty of the defendant to have kept the sidewalk in repair although the other portion of the street was sufficient for public use and convenience.
In so holding we do not conflict with the rule established in this state that it is the duty of a municipal corporation only to keep in repair so much of a street as may be necessary for public use and convenience. Craig v. City of Sedalia, 63 Mo. 417; Bassett v. St. Joseph, 53 Mo. 290; Tritz v. Kansas City, 84 Mo. 632. Having prepared a certain portion of a street for the use of pedestrians and the other portion of the street for the purpose of other travel, a municipal coporation will not be permitted to excuse itself for a failure to keep in repair the portion prepared for the use of pedestrians on the ground that the other portion was sufficient for the travel of pedestrians as well as all other travel. The pedestrians have a right to use the portion of.the street prepared for their ,use, unless such portion of the street be in such a
The question of plaintiff’s contributory negligence was .properly submitted to the jury, and we will not disturb their finding upon that question.
In Tritz v. Kansas City, supra, it was held that in a case such as this it is proper to submit to the jury the question “whether when a part of the sidewalk is defective through negligence, is the other part,” which is not defective, sufficient and reasonably safe and convenient for the travel thereon.” The Tritz case contains the last expression of the opinion of the supreme court upon.the question, and is controlling, upon us without regard to what may be our opinion upon the question. The instructions given by the court for the plaintiff ignored, it is true, the question which, according to the Tritz case, the court should have submitted to the jury. But the instructions asked by the defendant were all guilty of the same fault, and for this reason the defendant is not in a position to complain of the action of the court in this respect.
'Dr. Donaldson was examined as a witness by the defendant. Under section 4017, Revised Statutes, the witness was not competent, against plaintiff ’ s objection, to testify concerning any information acquired by him from the plaintiff by word of mouth or by an examination or inspection of her while attending her as a physician, which information was necessary to enable the witness to prescribe for her. Gartside v. Ins. Co., 76 Mo. 446 : Linz v. Ins. Co., 8 Mo. App. 363.
The plaintiff ’ s condition, and the extent of her injuries were facts necessary, of course, to enable the witness to treat her, and information concerning such facts acquired by the witness from the plaintiff while attending her as a physician was clearly within the statute. And so do we hold as to any information so acquired by the witness concerning the cause of the plaintiff’s condition. Because, while it perhaps may be true, that it
The cause and the effect were so connected that to tell the one was also to tell the other in a measure. The same may be said as to the medicine prescribed by the witness for the plaintiff. It was not competent for the witness to tell indirectly that which the statute forbade him to tell directly. Norton v. Moberly, 18 Mo. App. 457.
The witness was asked whether he could independently of any disclosures made to him by the plaintiff while his patient state the cause of her sickness or sufferings. To the question the court sustained an objection. The defendant would not seem to have been harmed by the ruling of the court, for it does not appear that the defendant offered in evidence any information had by the witness independently of such disclosures. But in addition to that, the information to communicate which the witness was competent was not such as he possessed, acquired independently alone of disclosures made to him by the plaintiff, but was such as the witness possessed, acquired independently, not only of such disr closures, but also of any examination or inspection of the plaintiff made by the witness for the purposes already named. Had the defendant de'sired the information, if the witness had any such, which it was competent for Trim to give, the defendant should have plainly asked for it.
We think that the court properly sustained the objections made to the questions asked the witness by the defendant.
It is unnecessary for us to notice the points made by the defendant as to the action of the court in over
Judgment affirmed.
