Squires v. City of Chillicothe

89 Mo. 226

• Court: Supreme Court of Missouri
• Decided: April 15, 1886
• Status: Published

Opinion

Henry, 0. J.

This is an action against defendant for damages for an injury to plaintiff, alleged to have been occasioned by the neglect of defendant to keep its-side walks in good repair, and in a secure and safe condition for the traveling public. Plaintiff states that she-was walking upon the sidewalk and without her fault, in consequence of defects in said sidewalk, was thrown to the ground and seriously injured. The answer denied the-material averments of the petition, and alleged that plaintiff ’ s own carelessness and negligence were the occasion of her fall and injury. Plaintiff had a judgment, from which this appeal is prosecuted.

On the trial of the cause, plaintiff introduced as witnesses physicians who had attended her, to testify toiler injuries, from knowledge derived from her, and from an examination of her person, and of this defendant complains, relying upon Gartside v. Ins. Co., 76 Mo. 446. That case has been overruled. Groll v. Tower, 85 Mo. 249. The testimony was admissible.

Nor did the court err in admitting the testimony of Fannie Squires and John Squires, as to the condition of her health and her complaints of suffering, after the fall on the sidewalk. Mr. Gfreenleaf in his work on Evidence-says : ‘ ‘ Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence.” 1 Greenl. Evid., sec. 102. The testimony objected to related to the pain and suffering then experienced, indicating the present existence of pain, and had no reference to antecedent suffering, or pain, or its cause.

With regard to the permanency of the injury two physicians testified ; one that he “found an enlargement of the uterus at the fundus in the hollow of the sacrum, an injury to the mouth of the womb, it being turned forward,” and “that, if the disease still exists, it is probable that it will never be entirely removed, still it may possibly be.” ' The other, that “by a digital examination in May or June, 1882, he found that there was prolapsus between the first and second degree.” The injury, occurred in April, 1882. Dr. McLeod ' examined the patient in September, 1882. The contention of appellant is, that there was “ a mere possible continuance of disability by reason of the injury,” and that this is not a proper element of damages. We do not so understand the testimony. The possibility is the other -way, not that she may labor under a permanent disability, but that it is possible that the disability may be removed. There was a probability of a permanent disability, and á bare possibility that the disability would not be permanent.

Nor did the court err in refusing the following in-, struction asked by defendant:

‘ ‘ 3. The court instructs the jury that, although they may believe that the sidewalk was defective, yet the plaintiff cannot recover unless she has shown to the satisfaction of the jury by a preponderance of'the testimony that the defect was so open an¡l palpable as to be apparent and necessarily attract the attention of passers by.”

It is the duty of the city, and not of “passers by,” to notice defects in streets and sidewalks, and repair them. It does not follow, because the defect is not' of a character necessarily to attract the attention of’ “passers by,” that the city, by the exercise of due care, would not have discovered it. The second instruction for plaintiff required the jury, before they could find for plaintiff, to find that the sidewalk had been in a defective condition for such a length of time as would have enabled defendant to discover it, by the use of ordinary care and caution. This correctly declared the law; and, if the city knew, or, by the exercise of reasonable care and caution, could have ascertained the defective condition of the sidewalk, it matters not that not one of a hundred persons passing over it noticed the defect. Russell v. Town of Columbia, 74 Mo. 480; Bonine v. City of Richmond, 75 Mo. 440.

On plaintiff’s application a change of venue in the cause was awarded to Carroll county, the petition being sworn to, not by the plaintiff, as the law requires, but by her father, John Squires. No exception or objection seems to have been taken to the affidavit, or the order on the Livingston circuit court, but only in the Carroll circuit court on a motion in arrest of the judgment. If objection had been made in the Livingston court, it would, I think, have been error to grant the change of venue. But, “it ought to have been made where the petition was acted upon, and in the court required to act, and not held back to be made in the court to which .the cause was removed. Such a course of. practice ought not tobe allowed, it answers no purpose of justice, and there is no reason for permitting it.” Potter v. Adams, 24 Mo. 159; State v. Knight, 61 Mo. 374; State v. Dodson, 72 Mo. 284.

We have discovered no error which would' justify a reversal of the judgment, and it is, therefore, affirmed.

All concur.