Fogg v. Kansas City

Missouri Court of Appeals

Fogg v. Kansas City

173 S.W. 712, 187 Mo. App. 252, 1915 Mo. App. LEXIS 266

DecidedFebruary 15, 1915

StatusPublished

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Bluebook

Fogg v. Kansas City, 173 S.W. 712, 187 Mo. App. 252, 1915 Mo. App. LEXIS 266 (Mo. Ct. App. 1915).

Pincite

Opinion

ELLISON, P. J.

Plaintiff’s action is for personal injury received from a fall on one of defendant’s sidewalks. She recovered judgment in the trial court.

There was evidence tending to show that one of defendant’s sidewalks descended slightly towards the parkway and that it was covered with ice which had 'been formed from repeated snows and thawings. That it had thereby been made rough and uneven by the tramping of pedestrians. These rough places were from two to three inches higher than the level and, as expressed by a witness, “some were a little higher.” It was described by another as “ in mounds. ’ ’

It was between one and two o’clock in the afternoon when plaintiff attempted to pass along the walk, and, of course, she saw its condition. But the evidence tended to show that it was in such condition that a reasonable person might conclude that it could be passed [255]*255over in safety by the nse of ordinary care. This state of evidence made a case for the jury under repeated rulings in ice cases in this State. [Reno v. City of St. Joseph, 169 Mo. 642; Barker v. Jefferson City, 155 Mo. App. 390; Combs v. Kirksville, 134 Mo. App. 645; Canterbury v. Kansas City, 149 Mo. App. 520.]

Complaint is made of the court’s action in refusing instruction “D,” wherein the jury were told, that if they believed “the snow and ice had been for the most part cleaned from the walks so that there was only a little skimming of ice and snow, not exceeding an inch in thickness, it was not the duty of the city to remove it” etc. This was properly refused. It omits to submit the hypothesis of the ice being rounded up into rough or uneven surfaces. All that is proper in it was fully covered by instructions A and B, given at defendant’s instance, in which the limit to the duty of the city with respect to ice on its sidewalks and what would not be an obstruction is fully submitted.

Plaintiff was permitted to prove that she had two miscarriages On account of her injury. Defendant objected that the petition did not warrant such proof. The petition contained the following allegations of injury; that her back and hips were strained and wrenched; her head and neck wrenched; that her genital organs were injured; that the nerves of her head, back, body and legs were injured. This we think was sufficient basis for evidence of a miscarriage. There was evidence tending to show that such misfortune was a natural and probable result of the injury to her genital organs and her nervous system. 'We think the evidence was properly admitted. [Moore v. Transit Co. 226 Mo. 689, 703; Gurley v. Ry. Co., 122 Mo. 141; Cooley v. Railroad, 170 Mo. App. 42, 47; Peterie v. Railroad, 177 Mo. App. 359.]

We think the record does not show any error and hence affirm the judgment.

All concur.

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ELLISON, P. J.

Plaintiff’s action is for personal injury received from a fall on one of defendant’s sidewalks. She recovered judgment in the trial court.

There was evidence tending to show that one of defendant’s sidewalks descended slightly towards the parkway and that it was covered with ice which had 'been formed from repeated snows and thawings. That it had thereby been made rough and uneven by the tramping of pedestrians. These rough places were from two to three inches higher than the level and, as expressed by a witness, “some were a little higher.” It was described by another as “ in mounds. ’ ’

It was between one and two o’clock in the afternoon when plaintiff attempted to pass along the walk, and, of course, she saw its condition. But the evidence tended to show that it was in such condition that a reasonable person might conclude that it could be passed [255]*255over in safety by the nse of ordinary care. This state of evidence made a case for the jury under repeated rulings in ice cases in this State. [Reno v. City of St. Joseph, 169 Mo. 642; Barker v. Jefferson City, 155 Mo. App. 390; Combs v. Kirksville, 134 Mo. App. 645; Canterbury v. Kansas City, 149 Mo. App. 520.]

Complaint is made of the court’s action in refusing instruction “D,” wherein the jury were told, that if they believed “the snow and ice had been for the most part cleaned from the walks so that there was only a little skimming of ice and snow, not exceeding an inch in thickness, it was not the duty of the city to remove it” etc. This was properly refused. It omits to submit the hypothesis of the ice being rounded up into rough or uneven surfaces. All that is proper in it was fully covered by instructions A and B, given at defendant’s instance, in which the limit to the duty of the city with respect to ice on its sidewalks and what would not be an obstruction is fully submitted.

Plaintiff was permitted to prove that she had two miscarriages On account of her injury. Defendant objected that the petition did not warrant such proof. The petition contained the following allegations of injury; that her back and hips were strained and wrenched; her head and neck wrenched; that her genital organs were injured; that the nerves of her head, back, body and legs were injured. This we think was sufficient basis for evidence of a miscarriage. There was evidence tending to show that such misfortune was a natural and probable result of the injury to her genital organs and her nervous system. 'We think the evidence was properly admitted. [Moore v. Transit Co. 226 Mo. 689, 703; Gurley v. Ry. Co., 122 Mo. 141; Cooley v. Railroad, 170 Mo. App. 42, 47; Peterie v. Railroad, 177 Mo. App. 359.]

We think the record does not show any error and hence affirm the judgment.

All concur.

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173 S.W. 712, 187 Mo. App. 252, 1915 Mo. App. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogg-v-kansas-city-moctapp-1915.

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