Boulton v. City of Columbia

Missouri Court of Appeals

Boulton v. City of Columbia

71 Mo. App. 519, 1897 Mo. App. LEXIS 498

DecidedJune 7, 1897

StatusPublished

This text of 71 Mo. App. 519 (Boulton v. City of Columbia) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boulton v. City of Columbia, 71 Mo. App. 519, 1897 Mo. App. LEXIS 498 (Mo. Ct. App. 1897).

Pincite

Opinion

Ellison, J.

This action is for damages alleged to have been suffered by reason of injuries received on one of defendant’s sidewalks, the walk being alleged to be defective and the cause of the accident. Plaintiff had judgment in the circuit court for $1,695 and defendant appealed to the supreme court. That court transferred the case to this court for the reason that it had not jurisdiction thereof. The case was duly docketed in this court and after each party had filed briefs and argued and submitted the cause, plaintiff filed a motion asking to set aside the submission and suggesting a diminution of the record.

The defect in the record is alleged to be that it fails to state (as it is alleged the original bill of exceptions states) that defendant excepted to the action of the court in giving instructions for plaintiff. Defendant’s abstract does show that the city excepted to the action of the court in giving plaintiff’s instructions. [523]*523But this was denied by plaintiff wherein she set out what she contended the record did show. With this disagreement between the parties as to what the.record contained, we have examined the transcript which is made out in full and find that, as stated by plaintiff, it fails' to show any exception by defendant to the court’s action in giving instructions for plaintiff and that it does show the fact to be as set out by plaintiff in her counter abstract on this point.

AtketLdi™iimtfoñ mission.^: sub' But counsel for defendant claim that the original bill of exceptions filed in the circuit court shows the matter as presented in their abstract; on the other hand, plaintiff’s counsel claim the bill of exceptions has been altered since it was signed by the trial judge and since the clerk made out the transcript. It is not necessary for us to go into that question, since defendant has no standing on the motion. Defendant knew, or must be presumed to have known, that the transcript here failed to show any exception to instructions given for plaintiff. Plaintiff’s counter abstract on that point showed that she disputed defendant’s abstract and yet defendant submits the cause to the court without suggesting a diminution of the record and the suggestion only comes after the cause has been orally argued and submitted. It is too late and can not now be entertained. The motion will therefore be overruled.

On the merits of the case, we find that there was ample evidence to sustain the verdict.

Municipal cor-u°butorySi,eguedge^'f defective street-The point is made that plaintiff knew of the defect in the sidewalk, and that by the exercise of ordinary care, she could have avoided it. The fact that plaintiff knew of the defect will not prevent her recovery if she exercised ordinary care and prudence in passing over [524]*524the walk. This has been too often held to need further statement here. And that she did exercise such care and prudence has been affirmed by the jury.

A^etIinISuPcac' uon. exception. Most of defendant’s brief is made up of objections to plaintiff’s instructions but, as is shown above, there was no exception taken to them and we must assume that they were unobjectionThe judgment will be affirmed.

Smith, P. J., concurs. Gill, J., absent.

Free access — add to your briefcase to read the full text and ask questions with AI

Ellison, J.

This action is for damages alleged to have been suffered by reason of injuries received on one of defendant’s sidewalks, the walk being alleged to be defective and the cause of the accident. Plaintiff had judgment in the circuit court for $1,695 and defendant appealed to the supreme court. That court transferred the case to this court for the reason that it had not jurisdiction thereof. The case was duly docketed in this court and after each party had filed briefs and argued and submitted the cause, plaintiff filed a motion asking to set aside the submission and suggesting a diminution of the record.

The defect in the record is alleged to be that it fails to state (as it is alleged the original bill of exceptions states) that defendant excepted to the action of the court in giving instructions for plaintiff. Defendant’s abstract does show that the city excepted to the action of the court in giving plaintiff’s instructions. [523]*523But this was denied by plaintiff wherein she set out what she contended the record did show. With this disagreement between the parties as to what the.record contained, we have examined the transcript which is made out in full and find that, as stated by plaintiff, it fails' to show any exception by defendant to the court’s action in giving instructions for plaintiff and that it does show the fact to be as set out by plaintiff in her counter abstract on this point.

AtketLdi™iimtfoñ mission.^: sub' But counsel for defendant claim that the original bill of exceptions filed in the circuit court shows the matter as presented in their abstract; on the other hand, plaintiff’s counsel claim the bill of exceptions has been altered since it was signed by the trial judge and since the clerk made out the transcript. It is not necessary for us to go into that question, since defendant has no standing on the motion. Defendant knew, or must be presumed to have known, that the transcript here failed to show any exception to instructions given for plaintiff. Plaintiff’s counter abstract on that point showed that she disputed defendant’s abstract and yet defendant submits the cause to the court without suggesting a diminution of the record and the suggestion only comes after the cause has been orally argued and submitted. It is too late and can not now be entertained. The motion will therefore be overruled.

On the merits of the case, we find that there was ample evidence to sustain the verdict.

Municipal cor-u°butorySi,eguedge^'f defective street-The point is made that plaintiff knew of the defect in the sidewalk, and that by the exercise of ordinary care, she could have avoided it. The fact that plaintiff knew of the defect will not prevent her recovery if she exercised ordinary care and prudence in passing over [524]*524the walk. This has been too often held to need further statement here. And that she did exercise such care and prudence has been affirmed by the jury.

A^etIinISuPcac' uon. exception. Most of defendant’s brief is made up of objections to plaintiff’s instructions but, as is shown above, there was no exception taken to them and we must assume that they were unobjectionThe judgment will be affirmed.

Smith, P. J., concurs. Gill, J., absent.

Cite This Page — Counsel Stack

Bluebook (online)

71 Mo. App. 519, 1897 Mo. App. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boulton-v-city-of-columbia-moctapp-1897.