Sneed v. City of Salisbury

ELLISON, J. This action is for an injury received by plaintiff on one of defendant’s sidewalks, which it is charged was negligently left out of repair. The judgment was for plaintiff in the trial court. The verdict for plaintiff was concurred in by more than nine, though less than twelve, of the jurors. Eor this reason defendant contended that the verdict required by the Constitution had not been rendered; the particular point being'that the recent amendment permitting a verdict by less than twelve men had not been adopted pursuant to the method required by the Constitution. We transferred the cause to the Supreme Court on'the ground that.it involved a constitutional question. [429] That court returned it to this court and we must assume that that court did not regard the question as properly raised. That part of defendant’s case must therefore be considered as eliminated. The only point made in the brief on which defendant has cited any authority is in relation to an alleged variance between the petition .and proof. The petition charged that plaintiff “stepped or slipped into a hole in said sidewalk where the boards were loose and not properly nailed, causing her to fall violently forward onto said sidewalk,” etc. She stated, in giving her testimony, that instead of her foot slipping in a hole, the board sunk down in the hole and then her foot slipped m under another board and threw her. We do not regard this as a variance of such pronounced character as to be fatal. She charged that she slipped into the hole, and she testified that she stepped on the board which sunk into the hole when she slipped. There is no material difference in these statements. The case of Haynes v. City of Trenton, 108 Mo. 123, and other cases cited by defendant, are not analogous. It is urged that the plaintiff alleged that the defendant had knowledge of the defect, when the proof was that the defective walk had existed for such length of time that defendant, in the performance of its duty, should have known it. Defendant, therefore, suggests that its instruction number eight, telling the jury that there was no evidence of knowledge of - the city or its officers and agents, should have been given, we think the point not well taken. The instruction was properly refused. Some other suggestions were made as to errors in the trial, among them that the injuries were not shown to be permanent and that the verdict was excessive. We are, however, of the opinion that they are not sound. We discover no substantial error materially affecting the merits of the case ard hence affirm the judgment. All concur.