Heberling v. City of Warrensburg

ELLISON, J. This action is for personal injury received on one of defendant’s streets by reason of plaintiff being thrown from a vehicle in which he was riding with a friend and receiving serious injury. The judgment was for plaintiff. There was a former trial in which the verdict was for the defendant. The court granted plaintiff a new trial and defendant appealed to the Supreme Court where the order was affirmed (204 Mo. 604), and the trial now appealed from followed. By reference to that report there will be found a full statement of the facts upon which the case is founded and they need not be repeated here further than to say that defendant’s officers took out of the street a wooden culvert reaching fairly across its width, fourteen inches deep and twenty inches wide. The place was filled in with loose dirt. Rains and travel made the filling soft so that the wheels of a vehicle would drop suddenly to a considerable depth. A rain had filled the wagon tracks and depressions with water so as to leave the defects in the place less likely to be observed. Plaintiff and a companion were driving along in an ordinary trot when the front wheels of their vehicle suddenly dropped into the place, throwing plaintiff forward between the horses onto the tongue and doubletrees, — the horses ran, and plaintiff was injured. An examination of the points made satisfy us that reversible error was not committed. Evidence was received showing that the city repaired the street after the injury to plaintiff. This was withdrawn by counsel [547] for plaintiff in the presence of the jury and the court announced its withdrawal and directed that it be not considered. That, in a civil case, cures the error. [Buckman v. Railroad, 100 Mo. App. 30.] Complaint is made that two persons said to the street commissioner when he was filling the place from which he had taken the culvert, that it was dangerous, and some one would get hurt. But this was not so much for the purpose of getting the opinion of the witness as it was to show notice or knowledge of the defect. Such evidence seems not to have been regarded as improper. [Heberling v. Warrensburg, 204 Mo. 610.] At any rate no one can fairly say that such evidence in the circumstances, considering the state of the proof from other sources, was of such character as to require the verdict to be set aside. It is also made a matter of complaint that the court should have permitted witnesses to state whether the place was filled in the usual, ordinary and proper manner. The witnesses had stated it was “filled good, it was filled up round, about ten inches wide, good and high.” The court refused their opinion whether that was the proper way. That was a question for the jury. The Supreme Court stated that it was not proper exculpatory evidence to show that this place Avas filled as other places were, as that was not a standard of safety (204 Mo. 618). And so we think the better examination would have been to have asked how the work was done, etc., and then let the jury say if it was proper. [Eubank v. Edina, 88 Mo. 651; King v. Railroad, 98 Mo. 235.] We think there is no substantial ground for objection to the mere shoAving that Thompkins was street commissioner. Nor do we think there was any error as to exclusions of offer to show what witnesses Fountain and Ridge would state in reference to the place being filled in the ordinary way. [548] A full examination of the record and briefs of counsel leaves us convinced that we have no right to overturn the verdict, and the judgment is therefore affirmed. All concur.