Asbill v. City of Joplin

GRAY, J. This cause was commenced in the Jasper Circuit Court to recover damages for personal injuries which plaintiff claims she received in June, 1907, in falling, caused by tripping on a wire across one of the sidewalks on a public street in the city of Joplin. Her evidence tended to establish the fact that Eighteenth street at the time complained of, was a pub261 lie street in the city of Joplin; that the city had given a permit to one Powell, to lay and construct ai concrete sidewalk on said street, and that while said walk was being laid and before the sidewalk was opened to the traveling public, there was strung across the end of said walk a wire, intending to prevent persons from passing onto and over said walk. She alleged in her petition that the contractor and defendant failed to set out a danger signal to notify persons of the obstruction caused by stretching said wire across the walk; that on said evening, and while she was passing on said walk, exercising due care, and without notice of said obstruction, she fell and suffered damages in the sum of $5009, for which judgment was asked. A trial was had by jury, and a verdict rendered in favor of respondent for the sum of $500, and the city has appealed to this court. The errors assigned are, that the court erred in refusing to give peremptory instruction asked by the appellant; that the verdict is against the evidence, and that the court erred in giving the first instruction requested by the plaintiff. The plaintiff was the only witness in her behalf as to the condition of the Avalk at the time of the accident. She testified that the night was dark, and that there were no lights or barriers to notify her that the wire was across the walk, and while walking along in the ordinary manner, she tripped and fell. When we consider the further fact that the city had granted a permit to have the walk constructed, the plaintiff’s evidence entitled her to go to the jury. In behalf of the defendant, two witnesses testified that the wire was placed across the sidewalk because the concrete walk was not in a condition to be used by the public, and that the wire was stretched and a board was placed at the top of the wire across the walk, and on which was hanging a lantern, in the early part of the evening. These facts were testified to by two witnesses, [262] wbo assisted in tbe construction of the walk. The appellant claims because no one testified that the light was not placed on the walk in the early part of the evening, that the court should have given the instruction to find for the defendant, in as much as the testimony of these Avitnesses showed that the proper warning had been given early in the evening, and if it was not there at the time the plaintiff was injured, the city was not liable. It seems to us this was a question for the triai court. [Steamboat City of Memphis v. Matthews et al., 28 Mo. 248; Meyers v. City of Kansas, 108 Mo. 480; Morris v. Kansas City, 117 Mo. App. 298, 92 S. W. 908.] In the case of Steamboat City of Memphis v. Matthews, above cited, the court says: “All the testimony was on one side, but the jury disregarded it, and the -circuit court, who heard the witnesses, sanctioned the verdict of the jury. We must infer from this that the circuit court was satisfied with the course of the jury. The credit due to the witnesses is a matter peculiarly for the jury, and any control over the finding of a jury in this respect could hardly b.e judiciously exercised by this' court, which must be guided altogether by what appears on the face of the record. The circuit judge would not, of course, permit a verdict to stand against his own instruction, and as that court has virtually certified to us that the verdict was right, we cannot interfere.” Wfiat we have just said determines the second point also, as it was for the jury to weigh and properly determine the testimony of the witnesses in behalf of the appellant. It is finally claimed that instruction No. 1 given in behalf of plaintiff, is wrong because it is a general instruction and attempts to inform the jury if they find certain facts to be true from the evidence, they should render a verdict for the plaintiff, but fails to mention one of the principal defenses relied upon by the defendant, to-wit: That if a light or signal was placed at the scene of this accident the evening plaintiff was hurt [263] and prior to ber accident, but was afterwards removed by third parties, tbe plaintiff cannot recover. Tbe court gave an instruction at tbe request of tbe appellant, wbicb clearly submitted this issue, and as tbe instructions taken together present tbe law fully, tbe action of tbe court in not submitting in tbe first instruction this defense is not reversible error. [Austin v. St. Louis Transit Co., 115 Mo. App. 146, 91 S. W. 450, and cases therein cited.] We find no error was committed against tbe appellant materially affecting tbe merits of tbe action, and therefore, affirm the judgment. All concur.