Durham v. City of Bolivar

ELLISON, J. This action is for personal injury alleged to have been received by plaintiff falling on a sidewalk in one of defendant’s streets. The verdict and judgment in the trial court was for the defendant and plaintiff in due time perfected her appeal. The answer set up in. general words that plaintiff was guilty of contributory negligence. The plaintiff, conceiving that the act or acts of negligence should be «stated, filed her motion asking that the answer be made more specific. The court sustained the motion and thereupon defendant filed an amended answer, stating that plaintiff’s negligence consisted in the manner in which she was walking and that she was not careful, prudent or watchful in her walking over the sidewalk. Plaintiff still objected to the answer, in that it was not yet sufficiently specific. The objection was not well taken, though if it had been, it would have been waived as plaintiff filed her replication and went to trial on the answer. Springfield Engine Co. v. Donovan, 147 Mo. 628; Walser v. Wear, 141 Mo. 443; Barkley v. Cemetery Co., 153 Mo. 300; Shuler v. Railway, 87 Mo. App. 618. ' A general allegation of negligence is stated to be good pleading by test-writers; and it has been so ruled in a number of cases in this State. Schneider v. Railway, 75 Mo. 295; Goodwin v. Railway, 75 Mo. 76; Mack v. Railway, 77 Mo. 232; LeMay v. Railway, 105 Mo. 361. Though some indirect or negative qualification may be thought to be given to those cases by «those of Foster v. Railway, 115 Mo. 165, 177 and Conrad v. Montcourt, 138 Mo. 311, 325. See Johnson v. Railway (decided this term). Every instruction was given as asked by defendant and no objection to evidence is now made, so that we are [604] left to consider whether there was any substantial evidence to sustain the verdict. In going over the testimony presented we find that, while there was evidence strongly tending to. make the case as stated by plaintiff in her petition, yet there was other evidence which, if believed by the jury, tended to show that it was plaintiff’s own fault to stumble and fall over a defect so apparent to even casual observation. To assert the power and authority to set aside this verdict after its approval by the trial court would make a precedent of far-reaching consequence. Again, considering the nature and character of the place where plaintiff alleges her injury occurred, the jury had the right as triers of the fact to reject her theory, although testified to by her. The verdict should he sustained under the view stated in Bank v. Hainline, 67 Mo. App. 483. The judgment is affirmed. All concur.