Wallis v. City of Westport

SMITH, P. J. This is an action which was brought by the plaintiff, a married woman, against defendant, a city of the third class, to recover damages for personal injuries-received by the former in consequence of the negligent defect in a sidewalk in -one of -the streets of the latter. There was a trial in the circuit court resulting in á verdict for $1,750. The defendant filed a motion for a new trial, in which one of the grounds assigned therefor was that the verdict was excessive in amount. Pending this motion, plaintiff remitted $350 of the amount of the verdict; and thereupon, the motion was [526] overruled, and judgment given for $1,400 — 'and from which defendant has appealed. The evidence shows that the plaintiff, while walking on a sidewalk in one of defendant’s streets was, by reason of a defect therein, thrown down' with such violence that the thumb on her right hand was much injured, and in consequence of which she suffered considerable pain, -etc. There was a stiffening, to some extent, of the thumb joint, which Dr. Ragan testified would probably be permanent. The plaintiff’s ability to perform her household duties was lessened by the injury. The defendant’s principal ground of complaint here arises out of the action of the circuit court in the giving of instructions for the plaintiff, the fourth of which declared it to be the duty of the defendant “to keep its sidewalk in repair,” and that “the plaintiff had a right to presume this duty had been performed and that the sidewalk was in safe condition for the use of the public, and was safe for any person passing on the same using ordinary care.” This was an incorrect expression of the law. It was not the duty of the defendant to keep its sidewalks in an absolutely safe condition. It was only required to keep them in a reasonably safe condition. The instruction omite this qualification and in that it was wrong. Smith v. Brunswick, 61 Mo. App. 578; Kling v. City of Kansas, 27 Mo. App. 231; Bassett v. St. Joseph, 53 Mo. 290; Nixon v. Railway, 141 Mo. loc. eit. 436; Blake v. St. Louis, 40 Mo. 569; Smith v. St. Joseph, 45 Mo. 449. The plaintiff’s fifth instruction, to which the defendant objects, was erroneous -in directing the jury that, in estimating the damages, if it found for plaintiff, to take into consideration not only the physical injury inflicted, bodily pain and mental anguish, inability by reason of the injury to perform her ordinary avocations of 'life, but that it might allow her for such damages as it appeared from the evidence would reasonably result to her from said injuries. [527] It is alleged in the petition that, in consequence of the injury so received her thumb has been permanently and to-, tally disabled, and her hand permanently injured, and rendered useless, whereby she was made sick and. lame and unable to attend to the ordinary avocations of life, etc., by reason of which she was damaged, etc. The instruction was doubtless framed with reference to these allegations of the petition, and the question is now presented, whether or not “inability, by reason of the injury, to perform the ordinary avocations of life” is an element of damage which can be recovered by a married woman in an action of this kind. The law may now be regarded 'as well settled in this jurisdiction, to the effect that, in oases where a married woman-receives personal injuries in consequence of the negligence of another, that two causes of action arise: one to her for the pain and suffering to which she is thereby subjected, and the other to the husband for the loss to him of her service, society and expense incurred by him in the treatment, etc., of her injuries. In this case the jury, by the instruction just referred to, were told that they might allow her damages for an element for which the husband alone could, 'as has been stated, recover. The evidence- tended to prove that, in consequence of her injuries, she was disabled to' perform her ■household duties. It must be presumed, in the absence of any disclosure made by the evidence to the contrary, that her household duties constituted her ordinary avocation of life. The inability of the plaintiff to- perform her household duties was a loss to the husband and not to her. It may be inferred from the very large amount of damages found by the jury that it concluded that, as her disability might extend throughout the remainder of her life that it was its duty, under the instruction, to take that into ■consideration in .estimating the quantum of damages to which plaintiff was entitled. The instruction, we think, was well [528] calculated to mislead the jury. It was incorrect 'and should not have been given. Ross v. Kansas City, 48 Mo. App. 440; McLean v. Kansas City, 81 Mo. App. 72; Smith v. St. Joseph, 55 Mo. 456; Thompson v. Railway, 135 Mo. 217. It is true, the court by its instruction, number one, which was a modification of the plaintiff’s number one, correctly told the jury 'that, “it was sufficient if the defendant’s sidewalk was in a reasonable safe condition for travel in the ordinary modes,” but this was inconsistent with the fourth 'and seventh given for plaintiff, which fold it that it was the duty of the defendant to keep its sidewalk in good repair, so as to be in a safe condition for travel. The instruction given by the court did not cure the error referred to, which was contained in the plaintiff’s two instructions. It follows that the judgment must be reversed and muse remanded. All concur.