Whiting v. City of Kansas

Missouri Court of Appeals

Whiting v. City of Kansas

39 Mo. App. 259, 1890 Mo. App. LEXIS 70

DecidedFebruary 17, 1890

StatusPublished

This text of 39 Mo. App. 259 (Whiting v. City of Kansas) 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

Whiting v. City of Kansas, 39 Mo. App. 259, 1890 Mo. App. LEXIS 70 (Mo. Ct. App. 1890).

Pincite

Opinion

EllisoN, J.

This action is for personal injury received by plaintiff from a fall caused .by- a defective sidewalk. Yerdict and judgment for plaintiff. We are hot able to discover any error in the trial of the cause. Contributory negligence was set up in the answer, but nothing supporting the plea was shown at the trial, and so the court very properly ignored such matter. Besides we are at liberty to infer that defendant abandoned such defense by withdrawing and refusing'’to read ,all but one of the instructions which the court gave.

If contributory negligence was properly in the case we may well assume, in favor of the action of the trial court, that it was covered by defendant’s instructions which were withdrawn and not preserved in the bill of exceptions.

The judgment should be affirmed.

All concur.

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EllisoN, J.

This action is for personal injury received by plaintiff from a fall caused .by- a defective sidewalk. Yerdict and judgment for plaintiff. We are hot able to discover any error in the trial of the cause. Contributory negligence was set up in the answer, but nothing supporting the plea was shown at the trial, and so the court very properly ignored such matter. Besides we are at liberty to infer that defendant abandoned such defense by withdrawing and refusing'’to read ,all but one of the instructions which the court gave.

If contributory negligence was properly in the case we may well assume, in favor of the action of the trial court, that it was covered by defendant’s instructions which were withdrawn and not preserved in the bill of exceptions.

The judgment should be affirmed.

All concur.

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Bluebook (online)

39 Mo. App. 259, 1890 Mo. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiting-v-city-of-kansas-moctapp-1890.