Legal Opinion · Concurrence

Stephens v. City of Eldorado Springs

Missouri Court of Appeals

Decided December 12, 1915Published

Appeal from Saint Clair County Circuit Court. — How. G. A. Galvird, Judge. (1) It was reversible error to refuse defendant a continuance on account of the absence of Dr. Hill as a witness, or as an alternative to refuse to allow defendant to read to the jury the statement of what Dr. Hill would testify as set out in the application., Oliver v. Aylor; 173 Mo.

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Appeal from Saint Clair County Circuit Court. — How. G. A. Galvird, Judge. (1) It was reversible error to refuse defendant a continuance on account of the absence of Dr. Hill as a witness, or as an alternative to refuse to allow defendant to read to the jury the statement of what Dr. Hill would testify as set out in the application., Oliver v. Aylor; 173 Mo. App. 323; Epstein v. Railroad, 250 Mo. 1. (2) The court erred in refusing to sustain defendant’s demurrer for the reason that under the state of facts shown in the testimony plaintiff was guilty of contributory negligence in law. Diamond…

1Concurrence

SEPARATE CONCURRING OPINION.

STURGIS, J.

I concur in the opinion herein, and more particularly because the answer contains a good plea of contributory negligence unless attacked before trial.

The answer, touching this question, is as follows: “And defendant says that plaintiff having knowledge of the actual condition of 'said sidewalk at the time of his alleged injury, and of any unsafe or dangerous condition of the same, voluntarily assumed all risk of injury incident to using the same; and that whatever injuries plaintiff received in passing over said sidewalk were the direct result of his own…

2Cases cited8 opinions

  1. Ramp v. Metropolitan Street Railway Co.Missouri Court of Appeals · 1908
  2. Peterson v. Metropolitan Street Railway Co.Supreme Court of Missouri · 1908
  3. Conrad v. De MontcourtSupreme Court of Missouri · 1897
  4. Johnson v. Metropolitan Street Railway Co.Missouri Court of Appeals · 1904
  5. Cain v. WintersteenMissouri Court of Appeals · 1910

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