York v. City of Everton

BROAD DUS, P. J.

The plaintiff’s suit is for damages claimed to have been caused by a fall she received on a defective sidewalk of the defendant city, on the 27th day of October, 1904. She alleges that defendant’s sidewalk on the east side of Main street was defective, in that the stringers and boards out of which the sidewalk was constructed were old, rotten and decayed, and the boards that made the covering were unnailed and lia *643 ble to become misplaced, and were uneven and of different thicknesses; that she, while walking along at the usual and ordinary gait, by the reason of the dangerous and defective condition of said walk, stepped on a loose board, which flew up and let her through said sidewalk, which had the effect of bruising her hand and leg and thigh and wrenching her back, and internally injuring her; that the sidewalk had been out of repair long enough for the defendant by the exercise of ordinary care to have known of its defective condition, etc.; and prayed judgment for three thousand dollars and for a physician to doctor her. The defendant’s answer was a general denial. The jury returned a verdict for $600, upon Avhich judgment was rendered, and the defendant appealed.

It is admitted by respondent that the cause should be reversed on account of errors committed by the court in giving certain instructions in her behalf, but she asks that the cause be remanded for a new trial. On the other hand, appellant insists that the plaintiff was not entitled to recover under the testimony and that the cause be reversed without remanding.

The plaintiff, among other things, testified that when she got to the west side of the Blakey building, close to the double door at that point, she stepped on a plank which let her left leg go through and she was thrown down; and that sh’e was thereby injured in her back and hip and left leg, and was also injured internally. Her testimony tends to show that she suffered greatly in consequence of the alleged fall. Her daughter, Lottie G-riesel, testified that soon after the alleged accident she was sent for and that she found her mother in bed sick; that she was suffering; that she was pale and sick; and that she was confined to her bed for three weeks; and that she could not do anything since her fall. A Mrs. York, her daughter-in-laAV, also corroborates plaintiff in relation to her injuries. And another wit *644 ness, named Manka, gave evidence tending to show that plaintiff was in a suffering condition on the afternoon of said date. There were several other witnesses who saw plaintiff, who testified tending to show that she was suffering from an injury. Her evidence tended to show that the walk had been built about twelve years prior to the occasion mentioned; that there were rotten stringers and planks in it, and that there were two loose planks near the double door in question. T. J. Blakey, the owner of the block where the sidewalk was located, testified that he had repaired it some; that on the west side about one foot north of the double door mentioned, there was a board loose, without any nail in it; that the walk had sunk some, and that it made that part of it “rotten and rickety;” and that after the injury to Mrs. York the street commissioner notified him to tear out the walk, but that he did not do so, as he was after-wards informed that the street commissioner was tearing it out. B. H. O’Kelly testified that some time in the forepart of the winter previous to plaintiff’s fall he passed over the walk and somewhere north of said door there was a board out of it.

The defendant’s evidence tended to show that plaintiff was not injured. Her own doctor testified that she was “shamming.” Two doctors appointed by the court to examine her testified that they could find no evidence of injury on her person. The defendant’s testimony was to the effect that the walk Avas sound and in a safe condition; and that certain of its officers passed over it almost daily and suav no defects in it whatever, although they were looking to ascertain its condition. Other matters of evidence will be noticed in the’course of this opinion.

On this state of evidence, it was for the jury to say Avhether the plaintiff had been injured by the alleged defect in the walk; and Avhether, if said walk Avas unsafe and dangerous, it had so existed for such a length of *645 time for defendant by the exercise of ordinary care to have discovered and repaired it before plaintiff’s said alleged injury. Defendant insists that, in any event, there Avas no evidence that the defendant had notice of any defect in the Avalk. But the evidence tends to sIioav that the stringers and planks were rotten so that they Avould not hold nails and that this condition had existed for a long time prior to the 27th day of October, 1904. If such was the fact, defendant was chargeable Avith constructive notice of its defective condition.

Instruction one, given at the instance of the plaintiff, was erroneous. The jury were told in the instruction that, if they found for the plaintiff in estimating her damages, they could take into consideration “a sum that Avill compensate her for the expense she paid or incurred effecting or attempting to effect her cure, caring for and nursing during the period she Avas disabled.” The instruction should have limited her recovery to a reasonable sum for such services, not to what she paid out. It was error, as it assumed that she had paid such expenses. And it was equally objectionable to assume that she had been nursed and cared for; and that she had suffered pain and anguish. [Plummer v. City of Milan, 70 Mo. 601 ; Evans v. Joplin, 76 Mo. App. 21 .]

Instruction numbered two is also defective in that it does not limit plaintiff’s right to recover for injury received on account of the defeat in the Avalk at the place mentioned in the petition.

Instruction numbered three is defective, because it authorizes a verdict for plaintiff for loss of business and for loss of time, unless in the. latter instance she was engaged in an avocation other than her household duties. Her household services belonged to her husband. [Plummer v. City of Milan, 70 Mo. App. 598 .] Plaintiff was engaged in the millinery business and she was permitted over the defendant’s objection to testify to her loss in that business during her disability. This evidence was *646 not competent and the instruction authorizing her recovery for such loss should not have been given. It has been said that, “Profits represent the net gain made from an investment or from the prosecution of some business after the payment of all expenses. The net gain depends largely on other circumstances than the earning capacity of the person managing the business. The profits of a business, with which one is connected, cannot, therefore, be made use of as a measure of his earning powers.” It was therefore held that evidence going to show the loss in business in cases of this character was speculative. [Pryor v. Railroad, 85 Mo. App. 367 .] The instruction is defective for the further reason that it assumes certain facts to be true that were controverted by the defendant. Instruction numbered four is defective for a similar reason.

The defendant for the purpose of impeaching plaintiff offered to show that her reputation was bad for chastity. The court refused the offer. One mode for the impeachment of a witness is to show his general bad moral character; for instance, his general reputation for sobriety or chastity. [Sitton v. Grand Lodge, 84 Mo. App. 208 .] And this rule is applicable to both male and female witnesses. [State v. Sibley, 132 Mo. 102 .] There are other decisions in our appellate courts to the same effect and the rule seems to be well established.

The court refused the following instruction asked by defendant: “The court instructs the jury that if they find from the evidence that a plank in the sidewalk in question was loose from the stringer and that the injury to the plaintiff was caused thereby, still, if the jury believe from the evidence that the sidewalk in question at the point where the injury is alleged to have occurred was at the time of the injury in a reasonably safe condition for travel in the ordinary modes upon a sidewalk, the jury must find their verdict for the de *647 fondant.” The instruction was flagrantly faulty. If there was a loose plank in the sidewalk at the place in question, we cannot see how the walk could he otherwise than unsafe.

The court also refused defendant’s ninth instruction, which is claimed to have been an error. The instruction seems to state the law, unless the language used to define the word “reasonable” is objectionable, to-wit: ‘‘Reasonable means in a reasonable manner, consistent loith reason, in a moderate degree, tolerably The definition seems to have been taken from the dictionaries, which are not always reliable when used in a court of law. It is true “tolerably” is treated by such authors as synonymous with “reasonable.” But it is not always, if ever, so understood. As used by the people, it does not mean “reasonable,” but on the contrary to indicate an indifferent condition or state. We cannot see the necessity for a definition of the word, especially when words are used for that purpose which require definition as much, jf not more, than the word sought to be explained. The word “reasonable” was sufficient in itself for the purpose, and did not require to be defined. For the errors noted, the cause is reversed and remanded.

All concur.