river formerly ran north of this acre in dispute, all controversy ended, is not supported by the record. The case hinged on that question of fact as to where the river ran with reference to this land, and the circuit court found against plaintiff on that point. To justify us in reversing that finding, clearly the plat should be before us to enable us to say, in connection with the other evidence, whether what the witnesses call "May's Island" was any part of "Harrison's Island." Butz testified that he had known the river 44 years before the trial, and prior to plaintiff's deed from Harrison in 1864, and that at that time the river ran south of May's Island, and continued to do so up to 1878, and is now running, with reference to May's Island, just as it was then, and that at that time the river ran north of Harrison's Island, and that the old slough which is now there was the channel of the river at that time. The trouble appears to be that plaintiff insisted on treating the meander line as surveyed by Reilly as the old bed of the river. Plaintiff's deed calls for Big river as the northern boundary of his tract. Reilly was a witness, and in answer to questions by the court said that what he called the meander line was the old river bed, and not the line as run through there now, and that the land which he spoke of as south of the old river bed is the land lying south of the line he run, and yet north of the old slough; and the other witnesses made the old slough the old river bed. Mr. G. W. Harrison said the land the defendant has in possession and which plaintiff claims is north of the old river bed. Jas. S. Wilson testified to like effect. In view of this conflict with the claim of plaintiff, it is clear that the circuit court was in a much better position, with the plats before him and the witnesses, to pass upon this question than we possibly can be. It is not our province to settle the weight of conflicting evidence, even if we had all the testimony and evidence before us, and, as already said, this we have not, and we are not to put the trial court in error on a pure question of fact in the circumstan

be permanent does not preclude the consideration of future pain and anguish as elements of damages therefor.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, § 236.]

3.. MUNICIPAL CORPORATIONS-DUTY TO KEEP SIDEWALKS IN REPAIR.

It is the duty of a city to exercise ordinary care to keep its sidewalks and crossings in a reasonably safe condition for public travel.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 15871594.]

4. SAME-PRESUMPTION.

A traveler on a public street has a right to presume, in the absence of knowledge to the contrary, that the city has performed its duty to exercise ordinary care to keep its sidewalks and crossings in a reasonably safe condition for public travel.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1673, 1678.]

5. APPEAL-HARMLESS ERROR.

A party cannot predicate error on the giving of an erroneous instruction which was given at his request. 6. TRIAL PROOF.

INSTRUCTION

CONFORMITY TO

Plaintiff, who lived apart from her husband, made her living by taking in washing prior to the time of the accident. The injury received was a sprain of the left ankle, two ligaments being ruptured. A physician testified that plaintiff's ankle would never be as good again as it was before the hurt, and that anchylosis was in progress at the date of the trial. The evidence also tended to show that plaintiff's backbone struck a protruding gas pipe when she fell, and that she constantly suffered with pains in her back on that account; and her physician testified that such an injury would affect the nervous system, and produce the pains of which plaintiff complained, and that, considering plaintiff's age, her condition was not likely to get any better. Because of her injuries, plaintiff was compelled to give up washing, and tried various ways of making a living, and had been compelled to abandon them or work only half time. Held, that a verdict for $5,000 was not excessive.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Damages, §§ 357, 358, 368.] 9. VENUE-WAIVER OF OBJECTION-STATUTE. Where no exception was taken to the action of the circuit court of Jackson county in granting, on plaintiff's application, a change of venue to the circuit court of a county other than one in the same or next adjoining circuit, and no motion was made to strike the cause from the docket of the court to which the venue was changed, but the defendant voluntarily entered its appearance, and submitted to the jurisdiction of the court without objection of any kind, any objection the defendant might have under Rev. St. 1899, § 822, providing that changes of venue from Jackson county shall be granted to some county in the same or next adjoining circuit, was waived.

10. APPEAL-HARMLESS ERROR.

Any error in the action of the court to which a cause was taken on change of venue in permitting the correction of a clerical mistake made by the clerk of the court from which the cause was transferred, in certifying the

transcript by changing the word "right" to "left," in describing the injury to plaintiff's leg, was not prejudicial to the defendant, especially as defendant was not surprised thereby.

Appeal from Circuit Court, Benton County; W. W. Graves, Judge.

Action by Jane Haxton against Kansas City. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. J. Ingraham, J. G. L. Harvey, and L. E. Durham, for appellant. Henry J. Latshaw, Jr., for respondent.

GANTT, J. This is an action against Kansas City for damages resulting from personal injuries received by the plaintiff June 19, 1900, by falling into a hole at the northwest corner of Ninth and Jefferson streets, in Kansas City, Mo., and striking the small of her back against the end of an iron gas pipe extending up from the bottom of said hole, and by a severe sprain of her left ankle by reason of the turning of a steppingstone, and the rolling of the same upon her said ankle. The petition charges that the city negligently maintained this hole in said street; that it neglectfully maintained said stepping-stones near said hole; that it negligently permitted weeds to grow about that hole and these stones, which obscured both; and that it negligently failed to maintain barriers around the hole and stones. There was a prayer for judgment for $5,000 for said damages. The answer of the defendant is a general denial and a plea of contributory negligence. The reply denies all new matter.

On the application of the plaintiff a change of venue was granted, on the ground of the undue influence of the defendant over the minds of the judges of the Jackson county circuit court, to Benton county, Mo. The cause was tried on the 13th of December, 1902, in the Benton county circuit court, and a verdict of $5,000 rendered in favor of plaintiff. Motions for new trial and in arrest of judgment were filed and overruled, and time given to file a bill of exceptions; and, in accordance with the leave granted, a bill of exceptions was filed on the 6th of May, 1902.

She

The evidence tends to show that the plaintiff is a lady of Welsh descent. She had been married, and had a young son, about 10 years old, but she was divorced from her husband for his fault previous to the receiving of the injuries for which she sues. supported herself by taking in washing and kept a few boarders. About 7 o'clock in the afternoon of July 19, 1900, plaintiff was sitting on the front porch of her home, 903 Jefferson street, when she saw her young son going north on the west side of Jefferson, near Ninth, carrying a basket of clothes, which appeared to be too heavy for him, and she started to his assistance. She went north on the east side of Jefferson street (her home being on that side) to the north side of Ninth street, and crossed west over Jefferson street. As plaintiff went to the

assistance of her son, she stepped over the curbing onto a space between the sidewalk and the curb on the west side of Jefferson street, just north of Ninth street; that is, near the northwest corner of Ninth and Jefferson streets. Jefferson street runs north and south, and Ninth street runs east and west, crossing Jefferson street. In this space there had been some stones, which the evidence tends to show had been arranged for stepping-stones, to allow pedestrians to pass over the curbing to the sidewalk. The plaintiff stepped on one of these stones, which turned with her and threw her on her back, which struck upon a projecting gas pipe which had been left there when the gas post was moved. This space on the sides of these stepping stones and at this projecting gas pipe was covered at that time with weeds. The evidence shows that these stones had been arranged for ten months to a year prior to the time plaintiff fell. About five or six months before plaintiff fell, the lamp-post had been moved from the place where this gas pipe stuck up, to the position it occupied at the time plaintiff fell. At the time plaintiff fell it appears that Jefferson street was being paved by the city with asphaltum, and the crossing had been removed for that purpose. The testimony on behalf of the plaintiff tended to show also that these steppingstones were on a direct line with the end of the sidewalk on the north side of Ninth street and the west side of Jefferson street. The curbing around the hole into which plaintiff fell had been put in by the defendant city through its superintendent of curbing and sidewalks, Thomas F. Callahan, in the year 1892, and was the "regular shoulder four-feet corner." At the time plaintiff was injured both Ninth and Jefferson streets were public, and among the principal thoroughfares of the city, and had been for at least 20 years. Both streets at this point were side-walked on both sides, and had gas and sewers on them. The principal cable road of Kansas City ran over the hill on Ninth street to the Union Station, and crossed Jefferson street at this corner within a short distance from where plaintiff fell. Jefferson street is the first street on the top of the hill over the incline from the Union Station. When the stepping-stone turned with the plaintiff, she fell, and the stone rolled over on her foot and ankle, and her little son was not strong enough to remove it; but a gentleman who ran to her assistance removed the stone from her foot, and several men then picked her up and carried her in their arms to her home, at Jefferson street. Dr. Branaman, who lived near by, was summoned, and testified that he did not remem ber whether he examined her back or not, but he found her suffering from a dislocated ankle and ruptured ligaments of the left ankle joint. In a few days he brought Dr. Beattie with him, and they together put her foot in a plaster-paris cast Plaintiff was

confined to her house for about four weeks, and was compelled to keep the plaster-paris cast on her ankle for three weeks. She testified that she could not go about very much for a couple of months; walked with crutches at first. Dr. Branaman attended her for about a month. Then she called in Dr. Jones, and he treated both her ankle and her back. Dr. Jones testified: That when he first examined plaintiff's left limb he found it swollen near the ankle, and the ankle was sore on pressure, and one bone in the leg diseased, and the bone was inflamed, with two angry-looking red scars about the size of a silver dollar over the bone. He also found pus gathered in several places at or near this point, and abnormally large veins in the same region. That the ankle joint was involved in an inflammatory process. That anchylosis was in progress at the time of the trial. On her back he found an enlargement of the sacrum, and pain and tenderness at the sacrum and surrounding parts, to wit, the lower part of the spine. He testified that an injury or fall would be the natural cause of these conditions, and that these injuries would affect the nervous system, and would naturally produce pains in the back such as plaintiff complained of, and that in a woman of plaintiff's age this condition was not likely to get any better. Dr. Burnett, who was appointed (on the motion of the city) by the court to make an examination of plaintiff, did so on December 9th, a few days before the trial. He made a specialty of nervous and mental diseases, and was a professor of the University Medical College of Kansas City. He testified he found Mrs. Haxton in only fair physical condition for a woman of her age; that she complained of pain over what is known as the "sacrum" (that is, the lower end of the spinal column, between the two hips). This pain incapacitated her to such an extent that she was unable to stoop or rise or follow her work. She is not able to do the work she once was. But he found no abnormal condition in this area, except on the left side of the sacrum, and there it appeared there was some thickness-a little unnatural roughness as compared with the other side. He testified he was unable to find any affection of the nerves at the base of the spinal column. The plaintiff herself testified that the projecting gas pipe struck her right on the backbone; that the pain in her back and foot was so intense she could not move; that her ankle still bothers her, and pains her so she cannot use it like she could before her injury; that her back is so weak and pains her so much that she cannot wash and do her work like she could before she was hurt; that she has tried numerous jobs to make her living since her injury, and has been obliged, on account of her back, to give them up; and that while she held different jobs she was able to work only half of the time. On the part of the defense

there was evidence that plaintiff's health was not good prior to her injury, but there was nothing in this evidence to indicate that her spine or ankle had given her any trouble before that time. Numerous errors are assigned, for which a reversal of the judgment is asked. The instructions will be noted further on in the opinion.

1. Three grounds are urged why a demurrer to the evidence should have been sustained: First, that there was no proof that the place at which plaintiff was injured was in a public street or thoroughfare of the city; second, that, even if it was a public street, the evidence shows there was a perfectly safe sidewalk and crossing at the proper and ordinary place, and within a few feet of the place where the plaintiff desired to cross, and, instead of using that, plaintiff voluntarily chose to cross at an irregular place, which the city had not put in use for pedestrians; and, third, that plaintiff was guilty of contributory negligence which would bar her recovery. As to the first of these propositions, we think there was ample evidence to show that Jefferson street was a public street, and the place at which plaintiff fell was within the lines of that street, and it was the duty of the city to make it reasonably safe for pedestrians' use. We have already noted in the statement that Mr. Callahan, the superintendent of curbing and sidewalks, had placed this curbing on the west side of Jefferson street, from Eighth to Ninth streets, in the fall of 1892, and at the time this accident or injury occurred to Mrs. Haxton the street was being paved with concrete, preparatory to laying asphaltum thereThe facts concerning this case distinguish it from Downend v. Kansas City, 156 Mo. 60, 56 S. W. 902, 51 L. R. A. 170, and Ely v. City (Mo. Sup.) 81 S. W. 168. In this case, unlike those, the testimony of Policeman Kirk shows that Ninth street, where it crosses Jefferson street, was one of the principal thoroughfares of the city, and the same could be said of Jefferson street. We do not deem it necessary to set forth the evidence at length to show that both of these streets were clearly public highways, which it was the duty of the city to keep in reasonably safe condition for those traveling over them for business or pleasure. The next contention is that the demurrer should have been sustained because appellant says there was a perfect sidewalk and crossing at the ordinary place, and plaintiff voluntarily chose to cross at an irregular place. This seems to be based upon a question put to the plaintiff, and her answer to it, as follows: “Q. You could have walked around and stepped upon the sidewalk from the east side there, where people cross the street? Ans. I could, but I did not do it." Clearly counsel meant "north side," instead of "east side," as there was no possible way of getting to this sidewalk from the east side of any place. "Q. And you could have stepped upon the side

on.

walk from Ninth street? Ans. Yes; I could have gone that way. Q. But you did not? Ans. No." We think it is plain the demurrer should not have been sustained on this ground, because there was much evidence to show that plaintiff was crossing at the usual and ordinary place, and over the crossing that had been used for a long time on the north side of Ninth street, crossing Jefferson; and, according to plaintiff's testimony, her use of the stepping-stones was not negligence, in the circumstances, as they had no appearance of danger, and seemed to have been used by the public generally in passing that way, and the testimony tended to show that these stones had been laid there as stepping-stones for public use for at least a year; and this leads to the next contention-that she was guilty of contributory negligence, as a matter of law, in attempting to cross on these stepping-stones. Whether or not she was guilty of contributory negligence was, under the testimony, clearly a question for the jury, and they were instructed upon that issue. That the place where plaintiff was crossing when she fell was the usual and ordinary place for people to cross at that point was supported by the evidence of Policeman Kirk, who testified that the stepping-stones were right at the crossing, and were in direct line with the crossing. He said: "Coming west on Ninth street, a person walking along here would strike these stones going across here between the curbing and this space. These stones look as though they had been put in there as stepping-stones to the crossing. That there was a space of about four feet between the sidewalk and the curbing, going west that way, and that there were weeds growing up around these stones. That is the regular way where the people would travel in going from the east side of Jefferson street to the west side of Jefferson street." These facts, taken in connection with the testimony tending to show that the point where she fell was not so dangerous as to deter a person of ordinary prudence, and that the hole in which she fell, and the gas pipe sticking up from the bottom of said hole, were hidden from view by the weeds, authorized the jury to find that plaintiff was not guilty of contributory negligence in walking upon these stepping-stones to reach the sidewalk, and tended to show at least that plaintiff, in the exercise of ordinary care, would not have discovered that the hole was there, or that the stepping-stones were insecure, or that the gas pipe was sticking up from the bottom of the hole. We think there was no error in overruling the demurrer to the evidence for either of the reasons urged in its support.

2. Instruction No. 1 given on behalf of the plaintiff is assailed for the reason that the jury were permitted to take into consideration future pain and suffering, without requiring them to find that plaintiff's injuries were permanent. This instruction was based

upon the medical testimony that the injuries to plaintiff would extend into the future for years, and would probably be permanent; and, on the question as to what injuries the jury would consider in making up their verdict, the court, in instruction No. 3, directed them "that if you believe that all or any part of the physical ailments and the consequent pain and suffering which plaintiff alleges she now has existed in plaintiff before her alleged fall, then for all such pre-existing ailments you can award plaintiff no damages." None of the cases cited by the learned counsel for the city go to the length which they claim. Those authorities hold that the jury may allow for future pain and suffering if the injuries are permanent, but none of them hold that the jury cannot allow for future pain and suffering unless such injuries are permanent. On the contrary, it is well-recognized law that, where the injuries are such that they are reasonably certain to continue to cause future pain and anguish, they are proper elements of damages.

3. Instruction No. 2 for the plaintiff is challenged. It tells the jury that "it is the duty of defendant city to exercise ordinary care to keep its sidewalks and crossings in a reasonably safe condition for public travel, and you are further instructed that plaintiff had a right to presume, in the absence of knowledge to the contrary, that defendant had performed said duty." The criticism is that plaintiff was not injured upon the sidewalk or crossing, and this reference to the duty to keep the sidewalk and crossing in repair was calculated to impress the jury with the view that the court, as a matter of law, meant to declare the place where she fell was within the terms "sidewalk and crossing," and was misleading, and that the knowledge which plaintiff confessed she had of the surroundings made all reference to her right to presume that it was safe improper. The city having assumed, according to the evidence of the plaintiff, to construct this crossing of stepping-stones, or permitted them to be so laid with its acquiescence, and invited the public to use the same as a crossing, it was entirely proper for the court to give this instruction, and we think there is no merit in the objection to the instruction as far as it told the jury plaintiff had a right to presume it was safe. There was no such knowledge on the part of the plaintiff of any danger in stepping on those stones shown that would deprive her of the right to this instruction-an instruction that has often been approved by this court under similar facts.

4. Among other instructions for the defendant, the court gave one numbered 10, in words following: "The court instructs the jury that the defendant city has the right to place obstructions at or within the curb line which marks the boundary between the roadway and the sidewalk, while engaged in improving a street, provided enough side

walk space is left unobstructed, sufficient to accommodate public travel; and if the jury believe from the evidence that the plank sidewalk opposite the point where plaintiff alleges she fell was of sufficient width to accommodate public travel at that point, and was unobstructed at the time she fell, and that the sidewalk from the east to the west side of Jefferson street was unobstructed, then your verdict must be for the defendant city." Counsel for the city insist that as this was the announcement of correct legal principles, and as the jury found for plaintiff, they must necessarily have disregarded it, and therefore their verdict should be set aside. A further contention is that the court, having held this was a proper instruction, ought to have sustained a demurrer to the evidence. In a proper case the instruction was well enough, but was somewhat inconsistent with the insistence of counsel for the city in this court, to wit, that Jefferson street was not a street. We are of opinion, however, it has no application to the facts developed in this case. There is no evidence that the stepping-stones on which plaintiff was injured were temporary obstructions caused by the improvements of the streets. For a year they had, with the knowledge of the city, been so arranged as to invite the public to use them as a walk, and were not within the line of the improvement then being made, to pave the street with asphaltum, but were between the curb and the sidewalk. Moreover, the jury evidently found that the cross-walk from the east side of Jefferson street was not "unobstructed," and that the stepping-stones were unsafe and negligently maintained as a walk. As to the other proposition-that the court should have sustained a demurrer to the evidence we have already expressed a contrary opinion. Is defendant in a position to complain of the giving of this instruction? We hold not. If it properly construes instruction No. 10, then it obtained from the circuit court a ruling too favorable to it. Clearly the jury did not understand that this was a peremptory instruction to find for defendant, and the defendant cannot complain of an error invited by it and in its favor. Erickson v. Railway, 171 Mo. 647, 71 S. W. 1022.

5. Complaint is made that the court erred in refusing instruction No. 15 prayed by defendant, as follows: "The court instructs the jury that there is no evidence in this case of actual notice to any such city official of the alleged defect." Policeman Kirk not only saw and knew of the dangerous condition of this place, but, 19 days before the injury occurred, notified his superiors in the usual way. Obviously it would have been error to have given it. Franke v. St. Louis, 110 Mo. 524, 19 S. W. 938.

6. No error was committed in denying instruction No. 16 asked by defendant, on the credibility of witnesses. The court fully

covered this point in its thirteenth instruction. That instruction goes as far as the courts are justified in going, without invading the province of the jury to weigh and consider the evidence.

7. Error is also assigned in refusing instruction No. 17 prayed by the defendant It was as follows: "The court instructs the jury that if you believe from the evidence that the place where plaintiff alleges she fell was not in the line of the cross-walk from the east side to the west side of Jefferson street, and that a person exercising ordinary care and prudence would have avoided the place where plaintiff alleges she fell, then plaintiff cannot recover, and your verdict must be for the defendant city." The court had already given instruction No. 9, in the following form: "The court instructs the jury that it is the duty of persons traveling over the streets and sidewalks of the city to use their eyes and other senses to see where they are going, and to avoid defects which are obvious or could be discovered by the exercise of ordinary care on their part; and if the jury believe from the evidence that plaintiff did not exercise ordinary care in stepping on the stone which she alleges caused her fall, but by the exercise of ordinary care could have avoided it or passed over it in safety, then your verdict should be for the defendant city." It is apparent, we think, that instruction No. 9 embodied the proposition for which defendant contends, to wit, "that if plaintiff had used her eyes, and by the exercise of ordinary care could have avoided going upon the stepping-stones, she was not entitled to recover." But this instruction was not properly modified. It assumes, and does not require the jury to find, that the place into which plaintiff fell and the stepping-stones had the appearance of being dangerous, and therefore plaintiff was bound, in the exercise of ordinary care, to avoid going upon them. The facts in evidence, without contradiction, disclose that at the time the hole was covered with weeds, and the stepping-stones bordered by them, and there was nothing to indicate to one not accustomed to use this path that it was dangerous. Even if the court had not given instruction No. 9, which fully guarded the defendant's rights, the evidence did not justify this instruction. Nor was there error in refusing to advise the jury that, "if the place where plaintiff alleges she fell was not in a direct line of the cross-walk from the east side of Jefferson street to the west side thereof," she could not recover. The whole testimony showed that at the time Jefferson street was being improved, and there was no cross-walk from the east side to the west side of it; and hence the walk on which plaintiff fell could not have been in a direct line with such crosswalk, which had been removed pending the paving of the street at the time. On the other hand, the only evidence on the sub