Boxberger v. Kansas City

68 Mo. App. 412, 1897 Mo. App. LEXIS 370

• Court: Missouri Court of Appeals
• Decided: January 11, 1897
• Status: Published

Opinion

Ellison, J.

This is an action for personal injuries received by plaintiff while walking along one of .the- plank sidewalks on a street in the defendant city. Plaintiff recovered and defendant appeals.

MroNraUonsL; defectnotic'efewdence. Defendant urges several points against the judgment. An examination of them satisfies us that they are each untenable. The objection that there was no evidence to show notice on the part of the city of the defective condition of the walk is not supported by the record. There was evidence which showed the defect to have existed long enough to have been known to the city if its officers had been in any degree attentive or diligent.

^iaf'prac'iicef cam£g witnesses, The court permitted plaintiff to call two witnesses after she had closed her case whose testimony was not in rebuttal. The court had a descretion in the manner of conducting the trial and we will not- interfere in a matter which is so well known as belonging to the discretion of the trial court, especially when a plausible excuse therefor is given by counsel as was given to the trial court in this case.

Atice^Idarnages?" evidence?ns * We do not deem the damages excessive in view of the evidence on that head. The amount is not so great that we can justify ourselves in interfering. We have examined the objections to instructions and find that taken as a whole they present the case fairly and clearly to the jury. Instruction number 4 for plaintiff could not possibly have been prejudicial to defendant and besides is under the evidence supported by Ross v. Kansas City, 48 Mo. App. 440.

The objection to evidence and the deposition of witness Kerbs were not well taken. The verdict is manifestly for the right party and is affirmed.

All concur.