Burdoin v. Town of Trenton , 116 Mo. 358 ( 1893 )

Barclay, J.

Plaintiff’s action is based on alleged negligence of defendant in permitting a highway to remain in a dangerous condition, in consequence of which she sustained injuries.

The pleadings need not be recited. They raise the issues of defendant’s negligence as above noted, and, on the other side, of plaintiff’s contributory negligence.

The tendency of plaintiff’s testimony is to prove that as she was passing along Fifth street, in the town of Trenton, on her way home from church, after dark, May 11,1890, she fell into an opening in the public sidewalk and was injured. Two boards, which originally had formed part of the highway for pedestrians, were wanting at that point, and had been since the previous January, leaving a hole twelve or fourteen inches wide and about fifteen inches deep, into which plaintiff fell. She was walking by the side of another woman, and two others were a short distance in advance.

Plaintiff lived a few blocks away, and knew that the sidewalk in the vicinity of the accident was in a bad condition, generally; but she disclaimed knowledge of the particular defect that caused the injury.

The extent of her damages will be referred to further along.

She obtained a verdict and judgment for $3,000, which, after the ordinary motions and exceptions, defendant has brought to the supreme court for review.

A variety of errors have been assigned in the proceedings on the circuit; but preliminary to taking them up, a more formal issue calls for some remark.

I. The plaintiff insists that the last bill of exceptions of defendant is not entitled to a place in the record, because filed out of time.

The motions for new trial and in arrest were overruled, defendant took its appeal and gave its bond for a stay of execution, all at the August term, 1890. At the same time an order of the court was entered giving defendant until the third Monday in October to file its exceptions. It filed a bill within that period; but after-wards, upon defendant’s counsel observing that its refused requests for instructions were not included in it, the trial judge, in vacation, December 2,1890, made-an order extending the time for filing an amendatory bill of exceptions to December 31, 1890. The final bill was accordingly allowed, signed and made a part of the record, December 30, 1890. It differs from that first filed only in supplying the refused instructions mentioned.

The case was begun in July, 1890. The law governing the point now before us was then expressed, and ever - since has been, in section 2168, Eevised Statutes, 1889, an enactment which went into force with the general revision of the statutes, in 1889. It was plainly intended to modify the stringency of the former law on the subject, as construed by the courts, and to enlarge the opportunities for securing a review by appeal or error.

The order of the circuit judge extending the time to file the bill does not expressly recite that it was “for good cause shown;” but as he acted in the premises it will be assumed that he found such cause, as the basis for his action. It was for him to determine, in his judicial capacity, the sufficiency of the cause. His allowing further time necessarily implied a finding by him that a good cause existed. So there is nothing in the objection that his order fails to show any cause for the extension.

' But the question yet remains whether the statute conferred authority to make such an order after the expiration of the time allowed for filing the bill, the term of the final judgment having closed. That the judge might, within the period granted, have extended the time beyond it, is very clear from the language of the section. But is it a fair and reasonable construction to hold that he may, at any date thereafter, however remote, without consent of the parties, ‘‘extend’7 the right to file the bill, when- that right has already ceased? We think not. His action, to be effective in extending the time, should be taken while the period allowed to file the bill is yet current — that is to say, while there is yet something left to extend.

Defendant’s counsel at this juncture suggest that though the second bill may not be good as an original one, it can stand as an amendment of the first.

The trial court has, no doubt, power, according to the principles and usages of law, to amend a bill of exceptions, as it has power to amend other parts of its record, nunc pro ümc, on a proper showing, after the lapse of the term of the judgment. But the action of the circuit judge, in vacation, ex parte, allowing and signing the second bill of exceptions, containing new matter, after the expiration of the prescribed time for filing such a bill, can surely not be sustained as an exercise of the judicial power to amend the records of the court. This is too evident to justify more than a passing ruling.

We consider that the second, or amendatory bill of December 30, 1890, is not properly a part of the record on this appeal and must be placed out of view.

As the original bill, however, was filed in season, the only practical effect of this ruling on the review of -the case is to eliminate the points arising upon the refusal of certain requests for instructions by defendant.

A number of other questions remain.

II. The first instruction, given at plaintiff’sinstance, is criticised as imposing too great a liability in declaring it the duty of defendant to keep its sidewalks in “good repair, free from obstructions and safe for travel, in •the ordinary modes, by day or night.” If that statement stood alone the objection would have greater force than it does now, for the liability of the town to plaintiff (under its charter, Sess. Laws, 1856 — 7, p. 350; .and later amendments) depends on its failure to exercise ordinary care to keep its thoroughfares in a condition of reasonable safety. It is not bound absolutely to keep them in good repair constantly.

But the part of the instruction quoted is merely an-abstract proposition, introducing a call for a finding of facts, which conforms strictly to the correct rule of law on the subject. Reading the instruction through, we see that it required the jury to find an omission of ordinary care on defendant’s part as essential to a verdict for plaintiff. That rule was emphatically repeated in the instructions given for the defendant. We regard the point criticised, therefore, as having no prejudicial bearing on the merits of the case, and hence -as furnishing no substantial basis for- disturbing the judgment. Revised Statutes, 1889, sections 2100 and 2303.

III. The instruction is further objected to because the words “without fault or want of proper care on her part” are said not to accurately state the law as to contributory negligence. A finding that plaintiff was “without fault,” would certainly comprehend that she had used ordinary care.

In the seventh instruction for defendant the1 court gave a very full statement of a rule on the subject of contributory negligence in terms requested by defendant. If there is any obscurity in plaintiff’s first instruction, because of the use of the term “proper care,” it is cleared up by the defendant’s instructions, more particularly explaining' what sort of care was “proper” in the circumstances, and plainly submitting to the jury, as an issue of fact, whether or not plaintiff had exercised such care.

IY. The plaintiff’s second instruction is next attacked, “because it ignores the question of contributory negligence.” It is to be noted that that "instruction does not of itself undertake to state facts warranting a finding for plaintiff. It merely sets forth one proposition of law bearing on the question of notice-(of the defective side-walk) to the municipal authorities. It is not criticised by defendant in that respect; and the point of objection urged is groundless. The instructions should all be read and considered together; and the seventh instruction of • defendant supplies any omission that may be supposed to exist in the plaintiff’s-second instruction in the p articular indicated. Owens v. Railroad (1888), 95 Mo. 169; Forster Co.v. Guggemos (1889), 98 Mo. 391. There is nothing in the latter, when read along with the other instructions, t'o support a claim that it authorized any verdict for plaintiff without a finding that she had exercised ordinary care.

Y. It is further urged that counsel for plaintiff in his closing argument to the jury went outside the evidence for facts, and otherwise indulged in a line of remarks wholly improper and unwarranted.

The record on this subject makes a rather peculiar showing. The objectionable parts of the argument are fully recited; but there is no indication or intimation in the record thatthe circuit judge was called upon, in any way, to correct them or to rule upon them while the trial was in progress. Nor was any objection to the remarks interposed at the time to the court, or to the counsel that made them. Yet the right to assert the objection is supposed to be preserved by a recital, in the bill of exceptions (preceding the statement of the remarks), that, “by agreement of counsel no objection was to be made during said closing argument, but such was and is considered objected to.”

Beyond that statement there is nothing to show any objection or exception to the argument now complained of.

However firmly counsel may agree that a coming argument is to be considered objected to, whatever it may be, we are decidedly of opinion that such an agreement alone should not be permitted to establish a basis for a reversal. The control of the argument is committed very largely to the discretionary power of the trial judge. The supreme court only interferes to correct his action therein where there has been a plain and unmistakable abuse of discretion.

Now if counsel stipulate not to object to an argument, and, what is more to the point, carry out such an arrangement, so that the trial judge is not called on to make any ruling regarding it, the party who remains silent and invokes no corrective action by the court, until the time has passed when any correction could be availing, must be held to have no just cause to complain thereafter. He certainly has saved no technical exception, and, when the case is viewed more broadly, he occupies no better position. The trial judge is there to do justice and to enforce the law. If counsel waive a resort to his interposition, for instance, by permitting obviously irrelevant evidence to come in without objection, they cannot afterwards assert an exception to its admission. Why should not the same rule prevail when counsel in argument adverts to some fact irrelevant to the case on trial? The court may itself interpose when necessary to keep an argument in its proper channel; but if it does not do so a party or his counsel should object to any remarks deemed improper, so that the court may plainly understand the objection and act upon it to correct or remove the false impression they may tend to create, while there is yet time for such ruling to be effective. Counsel cannot dispense with the valuable aid of the court in administering the law,, and then charge the court later with error for not sustaining an unspoken objection.

Our statute law declares that ‘ ‘no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.” ■ Revised Statutes 1889, sec. 2302.

We think it should be held, in accord with the plain intent of that section, that where no objection-(such as the trial judge can act upon) is made at the time to improper remarks of counsel in argument, the courts will not entertain an objection afterwards interposed by the motion for new trial.

■ YI. The only remaining objection to the verdict is based on its size ($3,000), it being insisted that it is excessive.

, When plaintiff fell into the hole in the sidewalk a piece of nail, fastened into one of the foundation beams of the woodwork, became imbedded in her leg, penetrated the flesh and also the bone. She was moreover thrown into a position which forced the weight of her body upon her elbow, so that she received a severe injury to the left.side.

Her testimony tended to prove that she had suffered great and constant pain since her fall; had attacks in the nature of spasms at times, and had been wholly unable to do her ordinary work in consequence, that she suffered constantly from sleeplessness, was often unable to sit up without pain, and was frequently-obliged to resort to chloroform to obtain rest; that she was forty-seven years old and had enjoyed good health before the injury.

Her physician testified that the spike had penetrated “away into the bone;” that plaintiff’s principal injury was to her side; that her liver was affected thereby, and he had treated her for that ailment.

The testimony for defendant tended to show that many of plaintiff’s symptoms were exaggerated, feigned, or that she was hysterical concerning them. But the trial court and jury who saw her, face to face, were in a far more favorable position to determine whether her alleged sufferings were real or pretended than we are. If her story is true (and, as the verdict sustains it, we must now so’regard it), the amount of the recovery is not excessive, certainly not sufficiently so to warrant interference with it here.

The judgment is affirmed.

Black, C. J., Bbace and Maceablane, JJ., concur.