Stagner v. Hill

ELLISON, J. The plaintiff while walking along one of defendant’s streets after dark fell into an excavation made for a sidewalk and was injured. She recovered a judgment in the trial court. It appears that the plaintiff, a laundress, was going, to her home after night along one of the principal streets of defendant and fell into an excavation about ten inches deep, which had been left unguarded and unlighted. There was no dispute as to the existence of the [283] excavation; and the evidence in plaintiff’s behalf tended to show that she, while in the exercise of proper care, was passing along the street after dark and fell into it whereby she was injured. It was not guarded by railing or other barrier, neither was it, in lieu of such protection, guarded by any warning light. There was further evidence tending to show that the city had actual knowledge of the place and its condition, and we can see no objection to the result if the instructions were correct. We have examined them and find those for plaintiff to be unexceptionable. All asked by defendant were given. But serious objection is made to the remarks of plaintiff’s counsel to the jury; or rather, to the course of his argument on the question of the city’s knowledge of the excavation. On this head we are cited to several authorities. There is no doubt of the general rule as contended for by defendant’s counsel. But, in our opinion, the argument was legitimate and proper. It had reference to the non-production of some of the city officials on the subject of notice. When there is evidence tending to support a charge against a defendant and he does not deny it, it is not improper to call attention to such matter in argument. The point here may be likened to that. The question was one of knowledge on part of defendant. Evidence and reasonable inference therefrom, pointed strongly to knowledge. We believe that counsel was within proper bounds in calling attention to a lack of evidence to the contrary on the part of the officials in question. The verdict is criticised as showing passion or favor on the part of the jury. We think the criticism not well made. The amount of the verdict shows the jury to have acted conservatively and moderately. The judgment is affirmed. All concur.