McLean v. Kansas City

ELLISON, J. Plaintiff was injured on one of defendant’s sidewalks in consequence of such walk being negligently permitted to become and remain in a state of decay and unsafety. She brought her action for damages against defendant and recovered. 81 Mo. App. 72. The present action was begun by the husband for loss of service. He having died, shé as administratrix was made plaintiff and recovered in the trial court. There are but two objections advanced against the judgment. One, that the petition does not state a cause of action, and the other that the instructions were erroneous in assuming matters in controversy. Neither of them is well taken. A fair and reasonable interpretation of the instructions, as framed by plaintiff, does not disclose that any issuable matter was assumed. The matter said to be assumed was that plaintiff’s wife was thrown down and injured. As to that fact, the evidence does not disclose any dispute, and, therefore, even it it had been assumed it would not have been reversible error. Burlington Bank v. Hatch, 98 Mo. 377. The objection to the petition is that it does not state that the city had known of the defective walk for a reasonably sufficient length of time to repair the same. Such statement is not made in direct terms. But the statements which are made are sufficient to necessarily embrace the allegation said to be necessary. The petition fully sets out the defective condition of the walk, [628] and alleges that the defendant carelessly and negligently suffered and permitted such defects to remain, whereby the plaintiff’s wife was injured. This was sufficient after verdict. Hurst v. City of Ash Grove, 96 Mo. 168; and cases cited. That case and others to he found in plaintiff’s brief conclusively determine the. point against defendant. There was one other objection to the instructions, viz., that the jury were not confined to the loss of the wife’s household services. We are, however, satisfied that taking the instructions together, the jury could not have been misled in that respect and that no other than household services could have been understood as a loss to plaintiff. No substantial, objection has been shown to the judgment and it is accordingly affirmed. All concur.