16 S.W. 483 (Mo. 1891), Barr v. Kansas City

Citation:16 S.W. 483, 105 Mo. 550
Opinion Judge:Brace, J.
Party Name:Barr et al. v. The City of Kansas, Appellant
Attorney:R. L. Yeager for appellant. Warner, Dean & Hagerman for respondents.
Case Date:May 25, 1891
Court:Supreme Court of Missouri
 
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Page 483

16 S.W. 483 (Mo. 1891)

105 Mo. 550

Barr et al.

v.

The City of Kansas, Appellant

Supreme Court of Missouri, First Division

May 25, 1891

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

Reversed and remanded.

R. L. Yeager for appellant.

(1) The court erred in giving and refusing instructions. (2) The damages assessed are excessive. There were no circumstances shown indicating wantonness, recklessness or conscious negligence that could be made the basis for aggravated, exemplary or punitive damages. Parsons v. Railroad, 94 Mo. 286; see, also, Stephens v. Railroad, 96 Mo. 207.

Warner, Dean & Hagerman for respondents.

(1) The court did not err in giving plaintiff's first instruction. Russell v. Columbia, 74 Mo. 480; Yokum v. Trenton, 20 Mo.App. 489; Bonnie v. Richmond, 75 Mo. 437; City v. Small, 86 Ind. 469; Jennings v. Van Scharck, 108 N.Y. 530. (2) The court did not err in refusing to give defendant's instructions, numbered 2, 3, 8. (3) The damages were not excessive. The cases cited by appellant have no bearing on the case at bar.

OPINION

[105 Mo. 552] Brace, J.

Action for personal injuries, in which plaintiff recovered a judgment in the Jackson circuit court against the City of Kansas for $ 10,000, from which defendant appeals.

The material averments of the petition are as follows: That, on the third day of July, 1887, and long prior thereto, Campbell street, between Sixth and Eighth streets, in said city, had been open for travel and generally used by the public as a street; that, under said Campbell street, at a point about opposite to where the alley between Seventh and Eighth streets intersects said Campbell street, there was a sewer previously built, and then, and for a long time prior thereto, maintained by said defendant.

That, at a point on said Campbell street over said sewer, and near the intersection of said alley and said Campbell street, and on the west side of said Campbell street, the said defendant, in constructing said sewer, left an opening for access to said sewer, and the defendant had provided a covering or grating for said opening, which was designed and intended, if it had been suitably constructed, and of suitable dimensions and sufficiently fastened, to cover said opening, so as to permit travel of all kinds over the same, as upon any other part of said street.

The defendant, in providing said covering to said opening in said sewer, negligently failed to provide a covering of sufficient dimensions, and the cover which the said defendant provided was about one and one-fourth inches too short, and about three-fourths of an inch too narrow, to properly fill said opening. The defendant provided bearings for said cover to rest on on each side of said opening, but negligently and carelessly failed to provide bearings at the ends of said opening.

That, by reason of the negligence of the defendant in providing an insufficient covering for said opening, [105 Mo. 553] and insufficient bearings on which the same should rest, the cover provided by defendant fell down and into said sewer, and left the said sewer open. That the open place so left in said sewer was about three feet and one inch in length and one foot and four inches in width; that, after the said cover fell into said sewer, the said sewer was, through the negligence and carelessness of defendant, left open on July 30, 1887, and for many days next preceding that day, and after the defendant knew, or, by the exercise of ordinary care, might have known, that the same was open, dangerous and unsafe, and liable to cause injury to those passing along and over said street.

That defendant carelessly and negligently left said opening unguarded, and negligently failed to give any signal or warning to those passing along or over said street of the opening in said sewer, and of the danger from said open sewer; that, on or about the thirtieth day of July, 1887, plaintiff, Carrie A. Barr, was passing along said Campbell

Page 484

street, and, while in the exercise of ordinary care upon her part, stepped into said opening and fell into said sewer, and was greatly wounded, bruised and injured; the petition then sets out particularly the injuries she received, alleges damage by reason thereof in the sum of $ 20,000, for which plaintiffs ask judgment.

The answer was a general denial and a plea of contributory negligence.

It was shown by the plaintiff, by evidence which was uncontradicted, that the construction of the covering of the man-hole, into which plaintiff fell, and its support was defective as charged in the petition, and that, by reason thereof, a hack passing over it about seven o'clock on Sunday evening, July 24...

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