Cohn v. City of Kansas
| Citation | 18 S.W. 973,108 Mo. 387 |
| Parties | Cohn et al. v. The City of Kansas, Appellant |
| Decision Date | 22 December 1891 |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.
Reversed.
R. L Yeager and W. S. Cowherd for appellant.
(1) The change of venue was improperly awarded. The affidavit was sworn to by a formal party of record, but not by the party in interest. Huthsing v. Maus, 36 Mo. 107; In the Matter of Whitson's Estate, 89 Mo. 58. The exception was properly saved and in the proper court. Squires v Chillicothe, 89 Mo. 232. (2) Notwithstanding the evidence conclusively shows plaintiff to have been guilty of contributory negligence, yet the court instructed that the law presumed her to be in the exercise of ordinary care. This presumption exists only where there is no evidence to the contrary. Moberly v. Railroad, 98 Mo. 183; Buesching v. Gaslight Co., 73 Mo. 219; Nichols v. Winfrey, 79 Mo. 551; Ham v. Barrett, 28 Mo 388. (3) In instruction 5, and again in instruction 7, given on behalf of plaintiff, the court attempted to define ordinary care. The definitions are conflicting, and neither is right. Ordinary care in law is not the care that any person, reckless or careful, ordinarily exercises; but the care that an ordinarily prudent person would usually exercise, or the care that a prudent person would ordinarily exercise in the same situation or under similar circumstances. Barton v. Railroad, 52 Mo. 253; Kelley v. Railroad, 18 Mo.App. 151; S. C., 95 Mo. 279; Hickman v. Railroad, 91 Mo. 433. In the following cases this question is discussed and the distinction drawn: Briggs v. Taylor, 28 Vt. 180; Reynolds v. Burlington, 52 Vt. 300; Hubbard v. Concord, 35 N.H. 52. (4) Plaintiff's own testimony, and that of the witnesses introduced in her behalf, shows she was guilty of negligence. In the following cases this court has held that the conduct of the plaintiff in each was such negligence as to bar a recovery: Lenix v. Railroad, 76 Mo. 86; Weber v. Railroad, 100 Mo. 194; Hudson v. Railroad, 101 Mo. 13. In no one of them was the conduct of the plaintiff so grossly negligent as in the case at bar. In other states, in cases where a municipality was a party, conduct similar to that of this plaintiff has been held to constitute contributory negligence. Township v. Anderson, 114 Pa. St. 643; Erie v. Magill, 101 Pa. St. 101; Durkin v. Troy, 61 Barb. 437; Gosport v. Evans, 112 Ind. 133; Centralia v. Krouse, 64 Ill. 9; Momence v. Kendall, 14 Ill.App. 229; Hartman v. Muscatine, 70 Ia. 511; Fox v. Glastonbury, 29 Conn. 204. (5) The damages are excessive. Kepperly v. Ramsden, 83 Ill. 354. So large a verdict in so doubtful a case is plainly indicative of passion and prejudice on the part of the jury.
Sherry & Hughes for respondents.
(1) The instructions on ordinary care taken together are unobjectionable. (2) The instructions fairly present the law of the case. Russell v. Columbia, 74 Mo. 487; Railroad v. Mares, 8 S.Ct. 321; S. C., 21 N.W. 5; Kendall v. Albina, 34 N.W. 833, and note; 11 A. 575, and note; Flynn v. Railroad, 78 Mo. 195; Stephens v. Macon, 83 Mo. 345; Haniford v. City, 103 Mo. 172. (3) 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; Guy v. Winters, 34 Cal. 153; Flynn v. Railroad, 78 Mo. 195; Black on Proof & Pleading in Accident Cases, 9, 13; Thomas v. Railroad, 8 F. 731; 2 Thompson on Neg., secs. 27, 1179; Stephens v. Macon, 83 Mo. 356, 357. (4) Where the negligence of the injured party is of a negative character, such as the lack of vigilance, and no injury would have resulted from it but for the primary wrong or negligent act of the corporation or of its servants, it will not defeat a recovery. Railroad v. The Central Trust Co., 23 F. 738; Loewer v. Sedalia, 77 Mo. 431. "It is not contributory negligence to go onto a sidewalk known to be out of repair, if ordinary care is used to avoid danger." Hubbard v. Mason City, 20 N.W. 172; MacKenzie v. Northfield, 16 N.W. 264; Munger v. Marshalltown, 13 N.W. 642; Delger v. St. Paul, 14 N.W. 567; Nichols v. Minneapolis, 23 N.W. 868; Bullet v. New York, 2 N.E. 1.
Lena Cohn and her husband brought this suit against the City of Kansas and the Grand Avenue Railway Company to recover damages for injuries which she received from falling into an excavation in a street, made by the railway company under authority from the city. The important averment of the petition is that both defendants negligently permitted the excavation to remain in the street without guardrails to protect persons from falling into it. The defendant dismissed as to the railway company, and the plaintiff took a change of venue to Buchanan county, where there was a verdict and judgment for plaintiff against the city.
At the time of the accident the railroad company had made an excavation on Grand avenue, a street in the city of Kansas, for the purpose of placing therein the machinery to connect the street cable road with the engine house. The excavation was some thirty or thirty-five feet wide and extended out from the west side of the street to the middle thereof, a distance of some fifty feet. There was a space of one or two feet between the end of the excavation at the middle of the street and a street railroad track. There was no barrier or other protection at this end of the excavation. There was room on the east side of the street for wagons to pass, and the east sidewalk was wide and entirely free from obstruction, and this was known to the plaintiff; for she passed south on that sidewalk shortly before the accident. On her return she came north on the west sidewalk. She says that sidewalk was all torn up at the excavation; that she went around the hole where the men were digging in the ground; that "the car came, then a loaded wagon and a buggy, and they were so crowded that I was pushed in; that was the way I was pushed in; I had no place to catch hold of, and there was no fence or nothing and I was thrown down between the wagon and the buggy, and they pushed me in." Again she says: "I saw lots of people passing by and so I passed by;" that she followed the hole around.
On the part of the defendant the evidence is to the effect that the west sidewalk was barricaded; that persons going on that sidewalk passed over the street to the east sidewalk when they came to the excavation; that the plaintiff started around, and on her way asked one of the laborers if she could go "by there," and he said "no," to cross over to the east sidewalk; that she went ahead, and the man called to her saying the paving blocks were loose and she might fall; that she went on around the east end of the excavation between that and the street-car tracks; that a man with a long plank on his shoulder was going south, followed by a wagon; that this man saw her and told her to go back but she did not obey him; that the wagon struck the plank and threw the man, the plaintiff and the plank into the hole near the northeast corner thereof where it was seven or eight feet deep; that there were a number of men at work in the excavation loading a wagon; that barriers or lights were placed around the hole at night, but were removed in the daytime to enable the men to work, and that there was no temporary sidewalk around the excavation. Several eye witnesses testified to the foregoing facts on the part of the defendant.
The plaintiff in rebuttal testified that she did not have the alleged conversation with the laborer, that she did not hear anyone call to her, and that she did not see a man with a plank on his shoulder.
Back of the assigned errors in excluding certain depositions of physicians, offered in evidence by the defendant to show the nature and the extent of the injuries, is the question whether the evidence is sufficient to support any verdict in favor of the plaintiff. In considering this question we must lay out of sight the controverting evidence of the defendant. We must also assume that the evidence produced by plaintiff is true, and give to it every inference favorable to her which may be reasonably and fairly drawn therefrom.
A person is not bound to abandon the use of a highway, open to the public, for the simple reason that it is known to him to be out...
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