Haniford v. Kansas City

• Decision Date: 02 February 1891
• Citation: 15 S.W. 753,103 Mo. 172
• Parties: Haniford v. The City of Kansas, Appellant
• Court: Missouri Supreme Court

15 S.W. 753

103 Mo. 172

Haniford v. The City of Kansas, Appellant

Supreme Court of Missouri, First Division

February 2, 1891

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Plaintiff's action is for personal injuries sustained, one night in December, 1886, in consequence of a fall into an excavation in one of the public thoroughfares of defendant which the latter negligently permitted to remain open, unguarded unlighted and dangerous to persons using the street.

Defendant answered by a general denial and a plea of plaintiff's contributory negligence, to which there was a general reply.

The action originally proceeded against the present defendant and the Metropolitan Street Railway Company, by which company the alleged excavation was said to have been made under authority from the city. At the trial, however, when the evidence closed, the court instructed the jury that the plaintiff could not recover against the street railway company and accordingly a finding and judgment in favor of that defendant ensued as well as a verdict for plaintiff against the city for $ 3,500.

The other instructions of the court were as follows: For plaintiff: "1. If the jury believe from the evidence that on or about the nineteenth day of December, 1886, the defendant, the Metropolitan Street Railway Company, under and by virtue of a franchise granted to it or to the Corrigan Consolidated Railway Company, by the defendant, the City of Kansas, and transferred to it by purchase or otherwise, made in Ninth street, between Wyoming and Bell streets, in the City of Kansas, an excavation; and that said excavation, at or about that time, was carelessly and negligently left unlighted, and without guards or railings, or danger signals and the plaintiff, while attempting to pass along said street, in the night, without fault on his part, fell into said excavation and was injured, then you should find for the plaintiff against the defendant, the City of Kansas.

"2. If you find for plaintiff, you will assess his damages at such sum as you believe from the evidence, is a fair and reasonable compensation for his injuries, received by means of falling in said excavation, including his physical pain and suffering and mental anguish, including permanent injury sustained if you believe his injuries are permanent, not exceeding $ 10,000."

For defendant: "1. If the plaintiff knew, or might by the exercise of ordinary care at the time have known, of the condition of Ninth street, where he alleges he was injured and yet took upon himself to pass along the street, when by the exercise of ordinary care and prudence he could have avoided any trench or excavation in said street, then your verdict must be for the defendant, the City of Kansas.

"2. If the plaintiff was himself guilty of any carelessness or negligence that directly contributed to any injury which you may believe from the evidence he received by falling into the excavation in said Ninth street, then your verdict must be for the defendant, the City of Kansas; and for the purpose of determining whether or not the plaintiff was guilty of such carelessness and negligence you may take into consideration the time of the day, and all the circumstances of the case. By the carelessness or negligence referred to on the part of the plaintiff, is meant an absence of ordinary care on his part, or such care as an ordinarily prudent or careful person would have exercised under the same or similar circumstances."

The plaintiff's own evidence in regard to the nature and extent of his injuries was that he had to be carried home was on crutches four months; was not able to attend to his business for seven months and had not been in good health since the accident; that when he stands up for more than three hours at a time his ankle swells and becomes feeble and painful; that he suffered great pain and had been obliged to take opiates to induce sleep.

The physician who treated him for the injury was absent in New York at the time of the trial but another (who was called to examine plaintiff as an expert, with a view to giving medical evidence) testified that he "found the ankle very much swollen, especially on the external side, and evidence of effusion of blood; blackness and blueness on the outside of the ankle and around the ligaments at the back of the foot, the ligaments attached to the heel; a very hard concussion (of at least three inches or three and one-half inches) above the ankle on the small bone of the leg, as if it might have been broken -- at least, it showed it had been acutely inflamed at that time; the foot somewhat turned to the inside as if it had not been perfectly reset; it had not assumed the normal condition corresponding with the other foot; the evidences were that the small bone had been fractured about three and one-half inches above the ankle-joint, the fibula;" that this joint had been seriously injured and had stiffened; that, while the fracture of the small bone would probably be permanently repaired, an injury to the joint would be more or less permanent for life; that if the foot was turned out, forcibly and suddenly, the internal side ligament is liable to rupture, and that ruptured ligaments are more permanent injuries than broken bones.

The evidence relating to the defendant's alleged negligence will be commented upon in the opinion.

The only instruction offered by the defendant and refused by the court, on which error is assigned, reads thus:

"6. If you believe from the evidence that the plaintiff fell into a trench or excavation in Ninth street, which was made by a plumbing firm for doing plumbing, then your verdict must be for the defendants, regardless of whether or not there were any lights or barricades around and about such excavation made by said plumbing firm."

Defendant after saving exceptions took this appeal, and before the cause was reached in the supreme court the Metropolitan Street Railway Company filed a motion for leave to participate in the argument in the cause. The other material facts appear in the opinion.

Affirmed.

R. L. Yeager and W. S. Cowherd for appellant.

(1) Plaintiff failed to show that the injury occurred within the limits of defendant city, and defendant's demurrer to the evidence should have been sustained. (2) The damages are excessive. Adams v. Railroad, 100 Mo. 555; Lombard v. Railroad, 47 Ia. 498; 39 Mo.App. 31. (3) Instruction 6, asked by defendant city, should have been given. Smith v. Hutchinson, 83 Mo. 690; Stephens v. Macon, 83 Mo. 355; Buesching v. Gaslight Co., 73 Mo. 219; Sheedy v. Streeter, 70 Mo. 679; Stewart v. Goodrich, 9 Mo.App. 125; 18 Mo. 115. If defendant fell into the ditch dug by the plumber, the defendant city was entitled to a verdict. There was a failure of proof. Waldheir v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Edens v. Railroad, 72 Mo. 212; Bullene v. Smith, 73 Mo. 151; Ely v. Railroad, 77 Mo. 34. The rule of notice in case the injury was occasioned by a ditch dug by plumbers without permit from the city, is different from the case stated in the petition. Russell v. Columbia, 74 Mo. 480; Stephens v. Macon, 83 Mo. 345. (4) The instruction asked by the Metropolitan Street Railway Company should have been refused. It was liable to both plaintiff and the city. Chicago v. Robbins, 4 Black. 418; Robbins v. Chicago, 4 Wallace, 657; Water Co. v. Ware, 16 Wall. 566; Inhabitants v. Railroad, 23 Pick. 24; Brooklyn v. Railroad, 47 N.Y. 484; Dillon v. Hunt, 82 Mo. 155; Sheehy v. Railroad, 94 Mo. 579. The city was entitled to a verdict against the railway company that would be conclusive upon it, and should not be put to the expense of another suit. Robbins v. Chicago, 4 Wall. 657; Fisher v. Thirkel, 21 Mich. 21; Cheatham v. Hampson, 4 D. & E. T. R. 318; Lowell v. Spaulding, 4 Cush. 277. The city has the right to insist in this court that the railway company should not have been discharged, and that the judgment should not stand. Eichelmann v. Weiss, 7 Mo. 89; Miller v. Bryden, 34 Mo.App. 609.

Pratt, Ferry & Hagerman for the Metropolitan Street Railway Company.

(1) The court erred in admitting in evidence each of the following sections of the revised ordinances: Sec. 5, p. 172; sec. 12, p. 173; sec. 21, chap. 34, div. 19; sec. 2, p. 242; because they were wholly irrelevant, immaterial and incompetent, and their admission only tended to mislead the jury. (2) Instruction 2, given for the plaintiff, was erroneous, in that the general statement authorizing an award of damages was not limited by the latter part of the instruction. (3) Plaintiff's instruction, numbered 2, was erroneous for two reasons: First. The evidence did not warrant a submission of the question of permanent injuries. Second. The instruction permitted a recovery for permanent injuries without the requirement that such permanency was found to be reasonably certain. Curtis v. Railroad, 18 N.Y. 534; Fry v. Railroad, 45 Ia. 416; White v. Railroad, 18 Am. and Eng. R. R. Cas. 213; 3 Sutherland on Damages, 261. (4) Instruction 6, asked by the city, should have been given. The facts stated would, if found, have made a failure of proof. Waldhier v. Railroad, 71 Mo. 514. The evidence warranted the submission of the question. The point contended for by respondent, to the effect that instruction 1, given for plaintiff, required a finding to the contrary of the facts stated in said instruction 6, has no application. Dewitt v. Railroad, 50 Mo. 302, 305; Parkhill v. Town of Brighton, 61 Ia. 103. (5) Plaintiff's first instruction does not define negligence, and it is too general and sweeping. The jury should have been told what was negligence. It was nowhere defined. Goodwin v. Railroad, 75 Mo. 73-75; 2 Thompson on Trials, secs. 1713-2327.

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