Heether v. City of Huntsville

ELLISON, J. The plaintiff was injured by falling on one of defendant’s street crossings. She brought this action for resulting damage to her and recovered judgment in the trial court. The defense attacked the sufficiency of the petition as to its stating a cause of action by objections to any testimony being received. A demurrer is the more direct course for such cause, and' while the courts permit the point to be raised by way of objections to evidence, they are inclined to make more allowances in favor of a cause of action being alleged than if a demurrer had been offered before the trial opened. [Duerst v. Stamping Co., 163 Mo. 620, 621.] We have examined the petition and find that it clearly stated a cause of action. It alleges defendant’s duty to maintain proper street crossings and that in violation of its duty it maintained a crossing over one of its streets so constructed and shaped that when wet or covered with sleet, snow or ice, it was dangerous for use by pedestrians. That it was constructed of vitrified brick set on edge and was so narrow in width and con [500] vex in form on its upper surface that when muddy or wet, or coated with snow or ice, or both, or when there was snow or ice thereon it was unsafe and dangerous to those passing over it. That on the day plaintiff fell thereon and for several days prior thereto, the crossing was coated with a covering of ice and snow, which, by reason of its faulty construction rendered it unsafe and dangerous. That defendant had knowledge of the snow and ice being thereon and of its dangerous condition, in that it was arched, broken and uneven, but yet permitted the same to remain in violation of its duty, etc. It alleges plaintiff’s fall thereon while in the exercise of proper care and we think meets every requirement in cases of this character. Certainly the case of Reno v. City of St. Joseph, 169 Mo. 642, cited by defendant, does not support the point made against the petition. On the contrary, we think the effect of that case is to support it. So, in our opinion, the trial court properly overruled the demurrer to the evidence. The point made by defendant in this respect is supported chiefly by references to portions of the evidence and that too for the defendant. But when the whole evidence is considered, we find that it called for the judgment of the jury and that the verdict given thereon is sufficiently supported, especially in this court after having received the approval of the trial court. There was evidence in the case tending to show that the crossing was made of vitrified brick, was about three feet wide and from one and a half to three inches higher in the center that at either edge. That so shaped, it was a dangerous construction when covered with snow or ice. That plaintiff in walking over the crossing fell on account of the snow or ice making’ the uneven construction slippery and dangerous. That pedestrians walking over the snow and ice had made it uneven. That she was painfully hurt and was carried home in a chair by the persons who came to her assistance. [501] It was shown by defendant that plaintiff was; walking without using rubber overshoes and the kind of shoes she wore was also brought out, but we cannot say, as a matter of law, that this showed a lack of due care on plaintiff’s part. It was a question for the jury. [Beauvais v. St. Louis, 169 Mo. 503; Chilton v. St. Joseph, 143 Mo. 192; Loewer v. Sedalia, 77 Mo. 431; Snow v. Provincetown, 120 Mass. 580; Barton v. Springfield, 110 Mass. 131.] We reject, in toto, defendant’s claim that the evidence did not make out a case for the plaintiff. The argument in that behalf leaves out of view much of the evidence in her behalf and fails to give effect to an established rule in this State that the prevailing party has a right to call to the support of the verdict every reasonable inference which may be drawn from the evidence. [Wilson v. Board of Education, 63 Mo. 140; Buesching v. Gaslight Co., 73 Mo. 231; Brown v. Railroad, 99 Mo. 310.] Complaint is made of the refusal of defendant’s instructions 14 and 15. We do not find instructions so numbered in the abstract. We have, however, examined all given in defendant’s behalf and find that they present every theory properly advanced in defense of the action. The last one (even as modified by the court) was certainly as liberal towards defendant as could be desired. Those for the plaintiff were the usual statement of the law in such cases and we find no objection to them. It is claimed that it was error in the trial court to admit evidence, of “obligations incurred” under the allegations of the petition. An objection Avas made to such evidence, but the record does not show any exception taken to the ruling of the court. There Avere oilier points made against the judgment Avhich Ave find not to be of sufficient moment to authorize a disturbance of the result and hence order its affirmance. All concur.