Smith v. City of Butler

Ellison, J. This action is for personal injury received by plaintiff while traveling over one of defendant’s sidewalks and charged to have occurred by reason of the defective condition of such walk. Plaintiff recovered, and defendant appeals. Objection is urged to remarks of plaintiff’s counsel in opening the case. The remarks were objected to at the time by calling the court’s attention thereto. The court thereupon declared them, in the presence of the jury, to be improper. This, under the circumstances, was sufficient. The remarks were not so far prejudicial to defendant as to have justified the discharge of the jury and calling another. ’ We are satisfied that the mere fact of plaintiff’s knowledge of the defective condition of the sidewalk ought not to debar him from a recovery. The question of plaintiff’s care, prudence and caution was properly embodied in the instructions. The criticism made of instruction, numbered 6, for plaintiff, that it permitted the jury to consider plaintiff’s “condition in life,” cannot be sustained. It has frequently been held by the supreme court and by this court, since Russell v. Columbia, 74 Mo. 480, that such words in an instruction fixing the measure of damage were not objectionable. The court refused for defendant the following instruction: “If the jury believe from the evidence that plaintiff failed to exercise ordinary care under the circumstances detailed in evidence concerning the injury complained of, even the slightest, contributing to in any degree, even the smallest, as a proximate cause, of the injury for which this action is brought, then the plaintiff is not entitled to recover in this action, and the jury must find in favor of the defendant.” Passing by any question as to the propriety of giving an instruction of the peculiar phraseology in which this one is framed, it is sufficient to say that all that [667] defendant was entitled to in this respect was embodied in the following, which was given at its instance: “The court instructs the jury that the burden of proof in this case devolves upon the plaintiff, and before you can return a verdict in his behalf you must find from the evidence: First. That plaintiff was injured by reason of the defect in defendant’s sidewalk, at the place alleged in petition. Second. You must further find that such defect was known to defendant or its servants prior to such accident, or had remained in such condition such length of time, that defendant through its agents and servants could by the exercise of ordinary care and caution upon their part have discovered the same in time to have repaired it, and failed to do so, and that such injury was occasioned by such failure upon the part of defendant to repair such defect. Third. You must also find that said plaintiff at the time he received the injury complained of was exercising such care and caution as an ordinarily prudent person under the circumstances would have exercised; and unless you find all these facts in favor of said plaintiff and against defendant your verdict should be in favor of defendant.” Complaint is made that the damages are excessive. We do not agree to this. Actual damages and expense was shown to be in excess of $100,. while the entire verdict was only $450. We have noted other objections, including that to the testimony of witness Smith, but find nothing which would justify us in disturbing the judgment, and it is accordingly affirmed. All concur..