Caskey v. City of La Belle

BLAND, P. J. 1. The answer alleged defendant was informed that plaintiff, on or about the date mentioned, got her right arm hurt or broken, but denied that the hurt was caused by the negligence of defendant, but that it was caused by her own negligence. Defendant offered no evidence whatever, that plaintiff’s arm was not broken; this fact was not controverted on the trial, and it was wholly immaterial that her mother said to Glenn, if she did say it, that “It was two weeks after she was hurt before I found out the arm was broken, and I told them they had better see the doctor.” The question was asked her for the purpose of impeachment. It is well settled law that a witness can not be impeached on an immaterial issue, and we do not think that the court erred in sustaining the objection to the — 597 — question asked Mrs. Caskey in respect to her statement to Grlenn. 2. In respect to the evidence of Lncile Dowell, that she heard Grace Morton say in the presence and hearing of plaintiff at the schoolhonse, a few minutes after the accident, that plaintiff had weak ankles and her ankles gave way and she fell and plaintiff stood by and said nothing, that “she was crying,” it seems to us should have gone to the jury for what it was worth. However, Dulcie Mulinex testified to the same facts, without objection. She was not contradicted in respect to this conversation by any witness, and the tacit admission of plaintiff, if it was an admission, that she had weak ankles and that they gave way and was the cause, of her fall, was before the jury for what it was worth. In view of this fact and of the age of plaintiff, her physical sufferings and mental anguish at the time the statement was made by the Morton girl and the fact that-the Morton girl did not see her fall and did not know what caused her to fall, we think the evidence was of very little weight and was wholly insufficient to overcome the positive evidence of plaintiff, that she was caused to fall by stepping in the crack between the two boards in the walk, and that defendant was not materially prejudiced by the error in striking out this scrap in the evidence of the Dowell girl. 3. It is contended by defendant that the court erred in excluding the evidence of Neva and Alta McDaniels taken at a former trial of the case. The defendant’s abstracts do not show that any offer was made of this evidence. The bill of exceptions, however, shows that the defendant proved by the court stenographer that the two witnesses in question testified at a former trial of the cause and that he had his stenographic notes of their evidence in his possession in court. Evidence was also offered that at the former trial these two witnesses lived at La Belle, but afterwards moved with their par — 598 — ents to Oklahoma City, in the Territory of Oklahoma and took np their permanent residence there; that in April or May previous to the trial, defendant’s counsel served notice on plaintiff’s counsel that they would take the depositions of these two witnesses in Oklahoma City, giving the date, street and number of the street, where the depositions would be taken, and that plaintiff’s counsel had arranged to have her represented at the taking of such depositions, but that a few days before the time set for taking the depositions, defendant’s- counsel notified plaintiff’s counsel that the depositions would not be taken. On this showing the court sustained an objection to the offer to have the stenographer read from his notes the evidence of the two absent witnesses taken on the former trial. This ruling is assigned as error. Defendant did not state what the absent witnesses had testified to or what it would prove from the stenographic notes, so that this court is not informed whether or not the evidence was competent or material, or whether or not its exclusion was prejudicial. In such circumstances an appellate court will not review the action of the trial court in sustaining an objection to the introduction of evidence. Wilson v. Board of Education, 63 Mo. 137; Bank v. Wills, 79 Mo. 275; School District v. Lauderbaugh, 80 Mo. 190; The State v. Douglass, 81 Mo. l. c. 235; The State v. Reed, 117 Mo. l. c. 613; Hickman v. Green, 123 Mo. l. c. 179; Perkins v. Adams, 132 Mo. l. c. 134; Morton v. Heidorn, 135 Mo. l. c. 615; St. Louis v. Babcock, 156 Mo. l. c. 151; Ruschenberg v. Railroad, 161 Mo. l. c. 81; State v. Goddard, 162 Mo. l. c. 228; Distilling Co. v. Lock, 59 Mo. App. 637; Watkins v. Edgar, 77 Mo. App. 148; Sweet, Dempster & Co. v. Sullivan, 77 Mo. App. 129; Guntley v. Staed, 77 Mo. App. 162; Lawson v. Spencer, 90 Mo. App. 514. The parties asked twenty-six instructions, of which the court gave but twenty-five and one other of its own — 599 — motion. Complaint is made of No. 1, given for plaintiff, for the reason that it referred the jury to the petition to locate the defective sidewalk in question. The instruction reads as follows: “1. The court instructs the jury that if you believe from the evidence that defendant city, on the east side of Pomeroy street along and at the place mentioned in plaintiff’s petition, constructed and maintained or permitted to he constructed or maintained, a sidewalk made of two planks twelve inches wide and two inches thick laid lengthwise along the street five inches apart and laid on pieces of timber or chunks of wood three or four inches thick, and that such walk was so constructed that a space of five inches was left open and unguarded between said planks, and defendant city constructed or permitted to he constructed or dug a certain ditch or trench under said sidewalk, and you further find such sidewalk so constructed as aforesaid, the said ditch underneath was defective and dangerous; and if you further find that plaintiff, while passing along and over said sidewalk on or about November 25, 1899, the time mentioned in plaintiff’s petition, while using due care and caution for one of her years, fell, by reason of her foot slipping into said ditch or trench aforesaid and by reason of said dangerous and defective sidewalk aforesaid and was injured thereby, then your verdict will be for the plaintiff on the first count of her petition.” The contention is that the court should have directed the jury to confine its attention to the very spot or foot of the sidewalk where it is alleged in the petition plaintiff’s foot went through the crack, to determine whether or not the sidewalk contained the specific defects alleged in the petition and whether or not plaintiff’s foot went through the crack at that identical spot. If the walk had been defective at one particular point or spot only, and the allegation of the petition had been that plaintiff stepped between the boards at that par — 600 — ticular point, there would be some force in the defendant’s contention and the case of Chitty v. Railroad, 148 Mo. 64, and kindred cases cited by the defendant, would apply; but the evidence of both plaintiff and defendant show beyond controversy that the board sidewalk was defective and dangerous from end to end; that its construction was such that any person passing over it, if he should happen to miss the boards and step into the crack between them, would probably be thrown, whether he did or did not step into one of the ditches under the walk. One who unexpectedly steps into a five-inch crack between two two-inch boards nailed to stringers, thereby losing his balance, would probably be thrown, even if' his foot went but a few inches below the surface; and while the evidence of plaintiff; is that she stepped into the crack and her foot went into the ditch under the sidewalk, yet we think that it was not essential to her right to recover that she should be held to strict proof that she did step into the ditch. If, as a matter of fact, she, not being negligent at the time, stepped into the crack 'anywhere on the sidewalk and was thrown, she was entitled to recover under the allegations of the petition. This view of the evidence, in respect to the defective condition of the walk, disposes of defendant’s contention that it was incumbent on plaintiff: to prove every allegation of her petition in respect to the particular spot on the walk where the petition alleged she fell, and to prove that she stepped into the ditch under the walk, and we think that' when plaintiff showed, as she did, that the sidewalk was defective from one end to the other by having a five-inch crack between the two parallel boards for its entire length and that the city officers had actual knowledge of its condition and that she unwittingly stepped into the crack and was thereby caused to fall and was injured, she made a prima facie case and should not be held to strict proof of the exact point — 601 — in the sidewalk where she fell, nor to strict proof of the •exact number of inches her foot went into the crack. 4. The instruction which the court refused was asked by defendant and reads as follows: “8. That if the jury believe from the evidence in the cause that the plaintiff was about eight years and four months oíd at the time of the accident, then and in that case, she was only required in .law, to exercise care and prudence equal to her capacity, age, knowledge and experience; yet if the jury shall further believe from the greater weight of the evidence, in the cause that she was traveling south to the schoolhouse, crossed Pomeroy street and got onto the sidewalk on the east side of Pomeroy street and started south to the schoolhouse and commenced walking rapidly or skipping along slowly, sidewise on the walk and was looking back behind her, or to the side of herself, talking to some other girl or girls behind her, and whilst thus acting, she fell on her elbow and injured it — and shall further believe from the evidence in the cause that such fall and injury was the result of such conduct, then in that case they will find for defendant.’-’ This instruction would make it negligent in a child of tender years and of immature discretion to play on the sidewalks of a city; and if it should happen that the sidewalk was defective, and the child, while innocently and thoughtlessly playing upon the walk, should step into a hole in the walk and break its leg, it would be guilty of contributory negligence and be debarred of any redress against the negligent city. We can not give our assent to so monstrous a proposition as law. We have disposed of all the points discussed in the defendant’s brief. The many other objections made by it we decline to notice for the reason the defendant has done uo more in its brief and argument than merely to name them as objections. Discovering no reversible error in the record, the judgment is affirmed. Reyburn and Goode, JJ., concur.