Howell v. City of Independence , 1896 Mo. App. LEXIS 403 ( 1896 )

Ellison, J.

This action was instituted by plaintiff for the purposes of recovering damages which she alleged she sustained as the result of injuries received while passing over defendant’s streets after dark. The judgment below was for plaintiff, and defendant seeks its reversal on account of certain alleged errors in the instructions given by the court at plaintiff’s instance.

The objection made to instruction 4 is that it is a mere abstract proposition of law. Without setting the instruction out it is sufficient to say that when it is read in connection with the evidence to which it was intended to apply we are satisfied the objection is not well taken.

The further objection is made to this instruction that it assumes there was a dangerous opening left in the street. This objection is also not well grounded. The dangerous opening referred to was put to the jury with the word “if” it became necessary in working upon the street to leave openings, there should be warnings placed for the protection of those passing by.

The only objection presented here to the court’s action on instructions, which has given us any trouble in arriving at a conclusion, relates to number 6 given for plaintiff. The jury are therein authorized by the court to allow to plaintiff as a part of her damages loss of time, when loss of time was not pleaded in terms. Assuming defendant’s contention that the loss was not sufficiently pleaded, yet since evidence on this head was received without objection from defendant, and the issue thereby, in point of fact, being placed before the jury, we deem the objection so far as being based on the petition to be not well taken. But it is a further contention on defendant’s part that- there was no evidence concerning the loss of time. An examination of the record has led us to the conclusion that such evidence was adduced. The plaintiff herself testified that she was disabled so as to prevent her from doing the work she had theretofore done, or any other work. It is true that in no one portion of the testimony does it appear for what length of time she was disabled from performing work, but there was sufficient in the whole evidence, we think, for the jury to base an estimate, especially in view of the fact that no objection was made as to this in the reception of testimony.

As to the amount of damages allowed we are of the opinion that if the evidence for plaintiff is to be relied upon it makes out a case sufficiently strong to support the verdict. There were some other minor objections made, but we think these not of sufficient importance to justify our interference and we therefore affirm the judgment.

Smith, P. J., concurs.. G-ill, J., not sitting.