Woodson v. Metropolitan Street Railway Co.

• Decision Date: 23 December 1909
• Citation: 123 S.W. 820,224 Mo. 685
• Parties: NORA L. WOODSON v. METROPOLITAN STREET RAILWAY COMPANY and KANSAS CITY, Appellants
• Court: Missouri Supreme Court

123 S.W. 820

224 Mo. 685

NORA L. WOODSON v. METROPOLITAN STREET RAILWAY COMPANY and KANSAS CITY, Appellants

Supreme Court of Missouri, First Division

December 23, 1909

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

E. C Meservey and W. H. H. Piatt for appellant Kansas City.

(1) The court erred in overruling demurrer of defendants at the close of plaintiff's testimony and at the close of all the testimony, for the reason: (a) The fall of deceased occurred in broad daylight and the obstruction which plaintiff claims caused the fall, was in plain view of the deceased. There was nothing to distract his attention therefrom, and his action in stumbling over said obstruction, if he did stumble, was negligence per se. Wheat v. St. Louis, 179 Mo. 578; Davis v. Railroad, 105 Cal. 131; Yahn v Ottumwa, 60 Iowa 429; Cohn v. Kansas City, 108 Mo. 393; Grandorf v. Railroad, 113 Mich. 496; King v. Colon, 125 Mich. 516; Casey v Madden, 163 Mass. 507; Foraker v. Sandy Lake, 130 Pa. St. 123; Moore v. Huntington, 31 W.Va. 842; Durkin v. Troy, 61 Barb. 457; Ray v. Poplar Bluff, 70 Mo.App. 261; Wilson v. Charleston, 8 Allen, 137; Erie v. Magill, 101 Pa. St. 616; Butterfield v. Forrester, 11 Eastman 60; Bruker v. City of Covington, 69 Ind. 33; City of Bedford v. Neal, 143 Ind. 425; McLaurey v. City of McGregor, 54 Iowa 717; Stackhouse v. Vending & Co., 166 Pa. St. 582; Knight v. Baltimore, 97 Md. 647. (b) The defendant city owed the deceased the duty only of keeping in a reasonably safe condition for him to walk upon and over, that portion of the street which it had improved and put in condition for the use of pedestrians. Craig v. Sedalia, 63 Mo. 417; Ely v. St. Louis, 181 Mo. 729; Ruppenthal v. St. Louis, 190 Mo. 222; Downend v. Kansas City, 156 Mo. 70. (c) The state of the evidence is such as to leave the cause of the fall of the deceased to conjecture and surmise. Smart v. Kansas City, 91 Mo.App. 592; Demaet v. Storage Co., 121 Mo.App. 104; Warner v. Railroad, 178 Mo. 131. (2) It was error for the medical experts of plaintiff, over the objection of defendants, to tell the jury that the death of deceased was caused by striking his head on the street car rail. Glasgow v. Railroad, 191 Mo. 358; Taylor v. Railroad, 185 Mo. 255. (3) The court erred in giving plaintiff's instructions 1 and 3, for the reason that said instructions: (a) Usurp the province of the jury and assume the truth and existence of alleged facts and conditions which are controverted by the pleadings and evidence. Lynn v. Massilon Bridge Co., 98 Mo.App. 111; Browning v. Railroad, 118 Mo.App. 458; Klein v. Railroad, 117 Mo.App. 691; Mathews v. Railroad, 26 Mo.App. 89. (b) They tell the jury that the city was bound to keep the unimproved space between the sidewalk and curb in the same condition as the sidewalk itself. Fockler v. K. C., 94 Mo.App. 464; Ruppenthal v. St. Louis, 190 Mo. 222; Craig v. Sedalia, 63 Mo. 417. (c) Are in conflict with defendant Street Railway Company's instructions 5 and 8 and defendant city's instruction 4. Hamilton v. Railroad, 114 Mo.App. 504; Porter v. Railroad, 199 Mo. 82. (d) Ignored evidence and material issues presented by defendants. Phelan v. Granite Pav. Co., 113 Mo.App. 435.

John H. Lucas and Chas. N. Sadler for the Metropolitan Street Railway Company, appellant.

(1) The peremptory instruction in the nature of a demurrer to the evidence, offered by this appellant, at the close of plaintiff's case and renewed at the conclusion of all the evidence, should have been given. Golden v. City of Clinton, 54 Mo.App. 100; Hesselbach v. City of St. Louis, 179 Mo. 505; Fockler v. Kansas City, 94 Mo.App. 464; Beck v. Brewing Co., 167 Mo. 195; Wheat v. City of St. Louis, 179 Mo. 572; Allen v. Railroad, 183 Mo. 411; Boyd v. Railroad, 103 Mo.App. 303; Powell v. Railroad, 80 Mo. 85. (2) Plaintiff must prove that Charlotte street at the point where this accident occurred is a public street in Kansas City, Missouri, and that the part on which the accident occurred was actually thrown open to travel by the public. Golden v. City of Clinton, 54 Mo.App. 100. (3) Cities are not compelled to keep all parts of their streets and sidewalks in a reasonably safe condition for persons traveling thereon, but only such part as it has thrown open for public use. Coffey v. City of Carthage, 186 Mo. 583; Pueschell v. Wire & Iron Works, 79 Mo.App. 459; Fockler v. Kansas City, 94 Mo.App. 464. (4) A person using that space left between the sidewalk and street curbing cannot presume said space is free from all obstructions. Fockler v. Kansas City, 94 Mo.App. 464; Coffey v. City of Carthage, 186 Mo. 573. (5) The owner of abutting property owes no duty to maintain the sidewalk or street in front of his premises in a safe condition, and is not responsible for any defects therein or obstructions thereon not caused by his own wrongful act. Beck v. Brewing Co., 167 Mo. 195; Reedy v. St. Louis Brewing Ass'n, 161 Mo. 523; Hesselbach v. City of St. Louis, 179 Mo. 505; Baustian v. Young, 152 Mo. 317; City of Independence v. Slack, 134 Mo. 66; City of St. Louis v. Insurance Co., 107 Mo. 92; Norton v. St. Louis, 97 Mo. 537. (6) Where plaintiff's own evidence shows contributory negligence demurrer should be sustained. Cohn v. Kansas City, 108 Mo. 393; Roberts v. M. & K. Tel. Co., 166 Mo. 371; Wheat v. City of St. Louis, 179 Mo. 572; 29 Cyc. 511; Wheat v. St. Louis, 179 Mo. 578; Butterfield v. Forster, 11 East 60; Davis v. Railroad, 105 Cal. 131; Yahm v. Ottumwa, 60 Iowa 429. (7) The court committed error in giving instructions for plaintiff and in giving instructions asked by appellant Kansas City and in giving instructions of its own motion. Hesselbach v. City of St. Louis, 179 Mo. 505; Pueschel v. Wire & Iron Works, 79 Mo.App. 459; Jones v. Railroad, 178 Mo. 529; Lee v. Railroad, 195 Mo. 400. (8) Injury resulting from either of two causes, for one of which defendant is liable, plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the result, and if the evidence leaves it to conjecture the plaintiff fails. Smart v. Kansas City, 91 Mo.App. 586; Young v. Railroad, 113 Mo.App. 636; Browning v. Railroad, 106 Mo.App. 729; Fuchs v. City of St. Louis, 167 Mo. 620; Deamet v. Storage Co., 121 Mo.App. 92; Warner v. Railroad, 178 Mo. 131. (9) The same rule applies where death ensues. Deamet v. Storage Co., 121 Mo.App. 92; Warner v. Railroad, 178 Mo. 131. (10) The placing of rails in the place these were is not an illegal use of the street or sidewalk, and did not form an illegal obstruction. Hasselbach v. City of St. Louis, 179 Mo. 505; Pueschell v. Wire & Iron Works, 79 Mo.App. 459; Gerdes v. Foundry Co., 124 Mo. 354. (11) The verdict in this case is contrary to the positive instructions of the court. Allen v. Railroad, 183 Mo. 411; Boyd v. Railroad, 103 Mo.App. 303; Flieschman v. Miller, 38 Mo.App. 177; Gessley v. Railroad, 26 Mo.App. 156. (12) It is not negligence not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated, and would not, unless under exceptional circumstances have happened. American Brewing Ass'n v. Talbot, 141 Mo. 674; Chandler v. Gas Co., 174 Mo. 327; Fuchs v. St. Louis, 167 Mo. 646; Ray on Negligence, pp. 133-134. (13) When specific acts of negligence are alleged it devolves upon the plaintiff to prove the acts of negligence pleaded, and if she recovers at all it must be on the specific acts of negligence pleaded, and not otherwise. Orcutt v. Cent. Bldg. Co., 201 Mo. 443; McGrath v. Railroad, 197 Mo. 105; Bartley v. Railroad, 148 Mo. 124; Ferry v. Railroad, 167 Mo. 96; Ely v. Railroad, 77 Mo. 34; Bunyan v. Railroad, 127 Mo. 12; Hamilton v. Railroad, 114 Mo. 508.

Frank P. Walsh and E. R. Morrison for respondent.

(1) (a) It was conceded at the trial that this was a public street. Knight v. Kansas City, 113 Mo.App. 561; State v Baldwin, 214 Mo. 290. As to the liability of the Street Railway Company, acceptance of the street by the city need not be shown. Beck v. Carter, 68 N.Y. 283; Carroll v. Water Co., 5 Wash. 617; 28 Cyc., 1435. (b) The space between the curb and the brick sidewalk should be kept reasonably safe. Fockler v. Kansas City, 94 Mo.App. 468. (c) The evidence showed that the fall was caused by stumbling over the bent rail. Soeder v. Railroad, 100 Mo. 673; Settle v. Railroad, 127 Mo. 341; Buesching v. Gaslight Co., 73 Mo. 219; Shore v. Bridge Co., 111 Mo.App. 278; Leright v. Ahrens, 60 Mo.App. 118; Musick v. Dold Packing Co., 58 Mo.App. 333; 28 Cyc., 1408. (d) The evidence was sufficient to show that the Metropolitan Company placed the rails at this point. (e) The obstruction in question was unreasonable, unnecessary, and was a permanent use of the street, and therefore illegal, but even if it had been legal the Street Railway Company would be liable for its negligence. 28 Cyc., 1434; Gerdes v. Iron & Foundry Co., 124 Mo. 354; Wood v. Mears, 12 Ind. 520; Jackson v. Robinson, 66 Wis. 642; Chicago v. Robbins, 2 Black (U.S.) 424; Johnson v. Whitefield, 18 Me. 286; Rex v. Jones, 3 Campb. 230. (f) The cause of death was sufficiently shown by the medical testimony. (2) Deceased was not guilty of contributory negligence. Barr v. Kansas City, 105 Mo. 558; Stephens v. City of Macon, 83 Mo. 345; Perrette v. Kansas City, 162 Mo. 251; Chicago v. Babcock, 143 Ill. 363; Barry v. Terkildsen, 72 Cal. 256; Houston v. Traphagen, 47 N.J.L. 24; Gilbert v. Boston, 139 Mass. 313; Dewire v. Bailey, 131 Mass. 169; Albion v. Hetrick, 90 Ind. 547; Jochem v. Robbins, 66 Wis. 643; Augusta v. Tharpe, 113 Ga. 158; Brusso v. Buffalo, 90 N.Y. 679; Olathe v. Mizee, 48 Kan. 535. (3) There is no variance between the petition and the proof. (4)...