Thompson v. City of Independence

ELLISON, J. This action was instituted to recover damages for personal injury received on one of defendant’s streets. The case was here on a former appeal and may be found reported in 120 Mo. App. 255, where a statement of the facts may be had. The case was remanded for a new trial. In the meantime plaintiff was married to Thompson. She again recovered judgment and defendant again appeals. After having examined the record we fail to find any substantial ground upon which to put the present appeal. The evidence shows beyond question that the city had notice of the defect sufficient in time to have enabled it to protect those travelling on the street from danger. The instructions given for either party properly covered every issue in the case and there is no just ground to say the jury did not fully and fairly understand what they were to determine. Instruction numbered 6, based on the theory of an accident, was properly refused. All that was proper in refused instruction numbered 7 was included in number 3, given for defendant. There is no good reason for complaint of the action of the court in giving instruction numbered 2 foT- plaintiff on the measure of damages. There is no reason to suppose the jury could have felt authorized to include any' element not allowable. It was general, but proper in so far as it went, and if defendant desired it to be more specific, it was its duty to so request in an instruction of its own. [Browning v. Railway, 124 Mo. 55.] But it asked none on that subject. There is no reason [378] able ground to suppose that the jury allowed plaintiff for time to which she was not entitled. Passing by any question as to the sufficiency of the appeal, we are fully satisfied that the verdict was for the right party, and accordingly the judgment is affirmed. All concur.