Ryan v. Kansas City

• Decision Date: 09 February 1911
• Parties: RYAN v. KANSAS CITY et al.
• Court: Missouri Supreme Court

134 S.W. 566

232 Mo. 471

RYAN v. KANSAS CITY et al.

Supreme Court of Missouri.

February 9, 1911.

1. MUNICIPAL CORPORATIONS (§ 806)—SIDEWALKS —INJURIES—CONTRIBUTORY NEGLIGENCE.

In an action against a city and one contracting with it for repairing sidewalks for injuries caused by falling into an excavation in the sidewalk, an instruction that, if there were lights burning along the street on the night plaintiff was injured, which were sufficient to light the excavation, so that plaintiff, by the exercise of ordinary care and the use of her senses, should have known of the excavation, if any, and should, by the exercise of ordinary care, have avoided it, she could not recover against the city was correct.

2. MUNICIPAL CORPORATIONS (§ 735)—SIDEWALKS —INJURIES—NEGLIGENCE—PERMITTING IMPROPER USE.

In an action against a city and one contracting with it to repair sidewalks for injuries resulting from falling into an excavation, because of alleged failure to have lights and barriers placed around it as required by ordinance, an instruction that the ordinances relating to lights and barriers of themselves created no liability against the city, so that its failure to enforce such ordinances was not of itself negligence by the city, and could only be considered against it in connection with the other facts and circumstances in determining whether the city was negligent, was correct.

In Banc. Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by Ellen Ryan against Kansas City, Missouri, and another. From a judgment for defendants, plaintiff appeals. Affirmed.

The following is the opinion of Graves, J., as delivered in Division No. 1:

GRAVES, J.

Plaintiff sues for personal injuries in the sum of $10,000. Verdict having been returned against her by a jury in the court below, she has appealed to this court. Complaint is chiefly lodged against some of the instructions given for the defendant. In fact the assignments of error go to the giving of six instructions nisi for defendants, and the overruling of the motion for new trial. The motion for new trial preserved these matters raised in the assignment of errors. This assignment requires, however, an outline of the pleadings and proof. As to the several given instructions, the proof can best be discussed with the points made. In her petition the plaintiff makes charges which can, perhaps, be somewhat summarized. To so do, pleading and proof can well be considered together to a certain extent.

Defendant E. I. Harris was a contractor under defendant Kansas City. His business cognomen was the Missouri Sidewalk Company. The alleged accident to plaintiff occurred on the west side of Main street between Thirty-Ninth street and Westport avenue. Such street was admittedly under the control of the city, one of the defendants herein, and was a public thoroughfare of said city. It is admitted that under contract with the city, defendant Harris, contracting under the cognomen aforesaid, excavated on the west side of Main street in said city, and between Thirty-Ninth street and Westport avenue, for the purpose of putting in a new sidewalk, a place about 5 feet wide, 75 feet long, and 1½ feet deep. This is charged to have been unsafe, but, of course, not admitted. As the gravamen of her charge against both defendants, the plaintiff, with proof of a dark and rainy night, plants herself upon sections 861 and 862 of article 6 of chapter 14 of the revised ordinances of said city, which read:

"Lights and Barriers. Every person who shall for any purpose, make or cause to be made, any excavation in, upon, under or near or adjoining any street, avenue, sidewalk, alley or other public place, and shall leave any part or portion thereof open, or shall leave any part or portion thereof obstructed, with rubbish, building or other material, during the nighttime, shall cause the same to be inclosed with good, substantial and sufficient barriers not less than three feet high and shall also place a red light at each end thereof in such a position as to shed its light upon such excavation or obstruction, and shall keep such lights burning from sunset to sunrise."

"Every person who shall in any manner render or cause to be dangerous any street, avenue, sidewalk, alley or other public place, shall from sunset to sunrise provide and properly place such barriers and lights around such dangerous place as are in the preceding section required."

After specifically charging in her petition a violation of these two sections of the ordinances, and that such violation constituted negligence she then proceeds: "Plaintiff further states that on or about the 30th day of September, 1905, at about 8:30 p. m. it was very dark and raining very hard, and plaintiff at said time, in the exercise of ordinary care and diligence, at about the hour of 8:30 p. m., between sunset and sunrise, was walking along the sidewalk on the west side of Main street and at a point on said sidewalk where the said excavation began and, on the north end of said excavation, stepped off said sidewalk into said excavation in said sidewalk, which was then partially filled with water, and was thrown violently down into said excavation, and plaintiff thereby sustained severe injuries to her back, spine, and womb; that plaintiff's womb was displaced and plaintiff suffered concussion of the spine and spinal column, injuring the nerves of the spine, spinal cord, and brain, causing curvature of the spine, spraining her back, and causing her nervous system to become severely shocked and prostrated, injuring plaintiff's brain and eyesight, all of said injuries being permanent." After charging that all such injuries were due to the negligence of the two defendants she asked for damages in the sum of $10,000, as aforesaid.

Defendant Kansas City answered thus: (1) It admitted that it was a municipal corporation, and denied all other matters, and (2) set up a plea of contributory negligence. Defendant Harris answered (1) by a plea of general denial, and (2) by a plea of contributory negligence. Replies to both answers were general denials. Thus stand some of the admitted facts and the pleadings. The disputed facts, if any, can best be discussed in connection with the questions raised upon the instructions which are challenged. It should be said at this point that it is not seriously questioned that the two defendants occupied the position of contractor and contractee. Nor was it seriously questioned that plaintiff was a servant girl, earning some $5 per week prior to her alleged injury.

The alleged accident occurred at or about 8:30 p. m. on September 30, 1905. It was raining at the time and the depression made by the excavation was filled with water. It is not denied that the lights and barriers required by the ordinance were not there at the time of the alleged injury. For defendants it was shown that there were numerous other lights in the neighborhood by which plaintiff, in the exercise of ordinary care, could have seen the unprotected place where she fell, but plaintiff, in person, says that at the time it was raining very hard and was very dark, and that there was "no light of any kind at the excavation; neither was there any barrier, and I did not see that an excavation had been made where the sidewalk should have been." There are a great number of witnesses for defendants who testify to the lighted condition of the place from other lights. One of the chief contests seems to have been upon the question of plaintiff's injury, if any. The diverse testimony upon this question need not now be considered. Further facts bearing upon the questioned instructions will be discussed in the course of the opinion. This sufficiently states the case.

1. Of the instructions complained of, five of them possess the same alleged fault. Instruction 4d will serve to illustrate, and reads: "The court instructs the jury that, if you believe from the evidence that there were lights along the street burning on the night in question, and the light cast from them was sufficient to light the place where plaintiff claims to have fallen, so that plaintiff, by the exercise of ordinary care and the use of her eyes and other senses, ought to have known of the excavation, if any, in the sidewalk, and ought, by the exercise of ordinary care, to have avoided the same, then the plaintiff cannot recover, and your verdict must be for defendant Kansas City." It will be observed that this instruction requires of the plaintiff the use of ordinary care to discover defects in the sidewalk upon which she was traveling, and the use of ordinary care to avoid danger, if she discovered defects. To the first requirement plaintiff objects. She contends that, unless she knew that there was a defect in the sidewalk, she had a right to assume that the city had performed its duty, and such sidewalk was in a reasonably safe condition for travel, and thus this instruction placed upon her a burden she did not have to carry. Among other cases, the plaintiff plants herself behind the doctrine of Heberling v. Warrensburg, 204 Mo. 604, 103 S. W. 36. The rule announced in the Heberling Case to our mind sustains her contention. In that case the plaintiff was defeated before a jury, but the trial court set aside the verdict, because it was impressed with the idea that error had been committed against plaintiff in giving an instruction thus worded: "The court instructs the jury that, if you find and believe from the evidence that the plaintiff knew, or by the exercise of ordinary care could have known, of the rut or depression in the street at the place where plaintiff claims to have been injured, and by the exercise of ordinary care could have avoided it, then your verdict will be for the defendant." This instruction was condemned by our Brothers in Division 2, and the trial court sustained in granting the plaintiff a new trial.

There is an attempt to harmonize the Heberling...