18 S.W. 914 (Mo. 1892), Meyers v. City of Kansas

Citation:18 S.W. 914, 108 Mo. 480
Opinion Judge:Thomas, J.
Party Name:Myers v. The City of Kansas, Appellant
Attorney:R. L. Yeager and W. S. Cowherd for appellant. Sherry & Hughes for respondent.
Judge Panel:Thomas, J. Black, Barclay, Gantt and Macfarlane, JJ., concur. Sherwood, C. J., and Brace, J., hold that the judgment ought to be reversed simply without remanding. Sherwood, C. J., and Brace, J., dissenting. Sherwood Sherwood, C. J. (dissenting).
Case Date:March 01, 1892
Court:Supreme Court of Missouri
 
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Page 914

18 S.W. 914 (Mo. 1892)

108 Mo. 480

Myers

v.

The City of Kansas, Appellant

Supreme Court of Missouri

March 1, 1892

Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.

Reversed and remanded.

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

(1) The trial court found the verdict was grossly excessive. This was equivalent to a finding that it was rendered under the influence of passion or prejudice; and, if this were true, it was the duty of the court to set the verdict aside and submit the case to a fair and impartial jury. Koetz v. Bleckman, 46 Mo. 320; Doty v. Steinberg, 25 Mo.App. 335; Sheedy v. Brick Works, 25 Mo.App. 531; Cassin v. Delaney, 38 N.Y. 178; Thomas v. Womack, 13 Tex. 580; Heidenheimer v. Schlett, 63 Tex. 395; Steinbuchel v. Wright, 43 Kan. 304; Railroad v. Dwelle, 24 P. 500; Nudd v. Wells, 11 Wis. 407; Adams v. Railroad, 100 Mo. 555; Sutherland on Damages, pp. 813-14. (2) Instruction, numbered 2, on behalf of the plaintiff told the jury that the plaintiff was presumed to have been in the exercise of ordinary care. In view of the evidence tending to show the plaintiff was intoxicated and guilty of contributory negligence, this was error. Ordinary care is presumed only when there is no evidence to the contrary. Moberly v. Railroad, 98 Mo. 183; Nichols v. Winfrey, 79 Mo. 551; Ham v. Barrett, 28 Mo. 388. (3) Instruction, numbered 4, for the plaintiff tells the jury to take into consideration the age of the plaintiff in estimating his damages. There was no proof of age. Hinds v. Marshall, 22 Mo.App. 208; Gessly v. Railroad, 26 Mo.App. 161; Carpenter v. Railroad, 38 Hun, 116. An instruction should not authorize the jury to consider matters concerning which there is no evidence. Moreover, the plaintiff claimed that his injuries were permanent, and this instruction authorized a recovery for such injuries. There being no proof of age, nor of the plaintiff's expectancy of life, there was no proper foundation for estimating the damages that would follow permanent injuries. Chase v. Railroad, 39 N.W. 197; Worden v. Railroad, 41 N.W. 26; Whelan v. Railroad, 38 F. 15. (4) Even though the city provides a way in which excavations shall be guarded, it does not follow that any other form is negligence. As between the city and the traveler, the city's whole duty is fulfilled if it erects and maintains barriers or lights sufficient to warn one in the exercise of ordinary care of his danger. Stephens v. Macon, 83 Mo. 345; White v. Boston, 122 Mass. 491; Cornelius v. Appleton, 22 Wis. 637; Vanderpool v. Husson, 38 Barb. 196; Koesler v. Ottumwa, 34 Iowa 41. (5) Instructions, numbered 6 and 7, asked by defendant, should have been given. Had the excavation in question been made by the city itself, and properly guarded, and thereafter these guards removed without its knowledge or consent, there would be no liability on the part of the city until notice of such removal, actual or constructive, was shown. Ball v. Independence, 41 Mo.App. 469; Maus v. Springfield, 101 Mo. 617; Bonine v. Richmond, 75 Mo. 437; Carrington v. St. Louis, 89 Mo. 212; Klatt v. Milwaukee, 53 Wis. 196. (6) The motion for new trial should have been sustained on the ground of newly discovered evidence. This evidence was important, relevant and material, and would probably have produced a different result. It was owing to no fault of the defendant it was not produced at the trial. State v. Curtis, 77 Mo. 267; State v. Murray, 91 Mo. 95; Helm v. Bassett, 9 Mo. 54; Howland v. Reeves, 25 Mo.App. 467.

Sherry & Hughes for respondent.

(1) The law presumes the plaintiff was in the exercise of ordinary care; and, under the pleadings, it was for defendant to overcome this presumption by evidence or facts from which the jury might infer want of ordinary care. Buesching v. Gaslight Co., 73 Mo. 233; Hoyt v. Hudson, 45 Wis. 105, 111; Guy v. Winter, 34 Cal. 153; Flynn v. Railroad, 78 Mo. 195; Black on Proof & Pleading in Accident Cases, page 9; Thomas v. Railroad, 8 F. 731; 2 Thompson on Neg., secs. 27, 1179; Stephens v. Macon, 83 Mo. 356, 357. (2) The instructions, taken together, present the law of the case fairly. Flora v. St. Louis, 3 Mo.App. 231; Hamby v. Brasher, 51 Mo. 439; Porter v. Harrison, 52 Mo. 524; State v. Holmes, 54 Mo. 153; Myers v. Railroad, 59 Mo. 223; Moore v. Sanborn, 42 Mo. 490; McKeon v. Railroad, 43 Mo. 405; Marshall v. Ins. Co., 43 Mo. 586; Noble v. Blount, 77 Mo. 235; Carlisle v. Co., 82 Mo. 40. (3) The plaintiff was before the jury, and they could know his age to a reasonable certainty without any proof on the subject. The man himself is sufficient proof of his age. State v. Anderson, 19 Mo. 241. It is well settled that persons and things may be produced in court for the inspection of the jury, and that such articles and persons so produced form part of the evidence submitted. 12 Am. & Eng. Ency. of Law, title, Jury and Jury Trial, subdivision "Trial of Issue," page 367, and many authorities there cited; 1 Thompson on Trials, secs. 850, 851, 856, 857. (4) The error complained of by appellant in its fourth point, if it is an error, was invited by instructions, numbered 3, 6 and 7, asked by appellant, and it cannot here claim it was error. Newton v. Miller, 49 Mo. 298; Bank v. Armstrong, 62 Mo. 59; Davis v. Brown, 67 Mo. 313; Garesche v. College, 76 Mo. 332; Noble v. Blount, 77 Mo. 233; Crutchfield v. Railroad, 64 Mo. 255; State v. Beatty, 25 Mo.App. 214. (5) It was the duty of defendant to use whatever precautions were proper and necessary to keep the street in a condition of reasonable safety for legitimate travel by night as well as by day. Haniford v. City of Kansas, 103 Mo. 172; Maus v. Springfield, 101 Mo.; Stephens v. Macon, 83 Mo. 345; Russell v. Columbia, 74 Mo. 480; Loewer v. Sedalia, 77 Mo. 431. (6) The damages are not excessive. Railroad v. Stout, 17 Wall. 663; Wilson v. Dock Co., L. R. 1 Eq. 190; Patterson's Railway Accident Law, pp. 469, 470; Wells v. Sanger, 21 Mo. 364; Goetz v. Ambs, 27 Mo. 35; Lanius v. Publishing Co., 20 Mo.App. 12; Merrill v. St. Louis, 12 Mo.App. 466; Barbour v. McKee, 7 Mo.App. 587; Myer v. Tamur, 11 Mo.App. 599; Welch v. McAllister, 15 Mo.App. 492.

Thomas, J. Black, Barclay, Gantt and Macfarlane, JJ., concur. Sherwood, C. J., and Brace, J., hold that the judgment ought to be reversed simply without remanding. Sherwood, C. J., and Brace, J., dissenting.

OPINION

[108 Mo. 484] IN BANC.

Thomas, J.

This is an action by plaintiff to recover damages for injuries received by him in consequence of falling into an excavation permitted by the city to be dug at the intersection of Grand avenue and Fifteenth street, by the Grand Avenue Railway Company. This excavation was some fifty feet long, extended the width of the sidewalk, about fifteen feet, and was eight or nine feet deep. It was in front of an engine-house on the west side of Grand avenue, which there runs north and south, and the railway company had placed in it its sheaves and other machinery with which to run its cables.

A general ordinance of the city, then in force, provided that every person, who, under permission of the superintendent of buildings, makes excavations under or adjoining streets, 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 position as to shed its light [108 Mo. 485] upon such excavation and shall keep such lights burning from sunset until sunrise.

By an ordinance approved February 1, 1886, the defendant city granted to the Grand Avenue Cable Railway Company the right to construct its line, and to make the said excavation. This ordinance required said company to comply with the ordinances of the city in reference to street excavations, and to hold defendant harmless from damages caused by the negligence of said company in the construction of its road.

The evidence on the part of the plaintiff tended to prove that plaintiff lived, at the time of his injury, on a farm twenty-three miles from Kansas City; he had formerly lived in that city and was familiar with the streets at and near the intersection of Grand avenue and Fifteenth street; he went to the city about the twenty-first day of July...

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