Marshall v. Kansas City

Decision Date23 February 1923
Docket NumberNo. 23217.,23217.
Citation297 Mo. 304,249 S.W. 82
PartiesMARSHALL v. KANSAS CITY.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County Allen C. Southern, Judge.

Action by Charles Marshall, by Fred Marshall, his next friend, against Kansas City. Judgment for defendant, and plaintiff appeals. Affirmed.

John Hyde, Garrett, Howell & Boley, and Atwood, Wickersham, Hill, Levis & Chilcott, all of Kansas City, for appellant.

John B. Pew and Ilus M. Lee, both of Kansas City, for respondent.

Statement.

RAILEY, C.

This action was commenced In the circuit court of Jackson county, Mo., on April 23, 1919, by Fred Marshall, as next friend of Charles Marshall, a minor, to recover damages alleged to have been sustained by said minor on March 21, 1918, in falling down an embankment near a wooden sidewalk in Kansas City, Mo. The plaintiff, at the time of his injury, was between seven and eight years of age. It is claimed that on the date in question plaintiff, and another boy, Fenton Kirk, some two years younger than plaintiff, were playing upon an embankment made by raising the grade of Spruce street, a north and south street, between Twenty-Ninth and Thirtieth streets, east and west streets, and that while so playing, as stated in petition, "a portion of the earth of said way caved, slid, moved, and slipped, causing plaintiff to be thrown from his position and to fall from said public way down said embankment."

A ravine crossed Spruce street at right angles, and as a part of the plan adopted by the city in carrying Spruce street over this ravine a large wooden or box culvert was laid across Spruce street, at the bottom of the ravine, for the purpose of carrying water collected in this ravine across the street. This wooden culvert was high enough to allow a man to walk through it. A photograph shows the culvert to be approximately square. After said culvert was placed in the street,. loose dirt, obtained by lowering the grade of Spruce street at a point south of the ravine, was dumped on either side and upon top of the culvert, thus forming a fill or embankment in and along Spruce street. Under this plan the grade of Spruce street was raised to a height of 4½ feet above the top of the wooden culvert. Spruce street was not paved over this fill, A 5-foot cement sidewalk ran along the east side of Spruce street to the south edge of the fill. The cement sidewalk was not carried on northward over the fill, because of the impracticability of laying a cement walk on a fill of this depth until it had been allowed to settle for at least two years. On account of this situation, a sidewalk, consisting of two 10-inch boards, placed side by side with a space between them of about three-quarters of an inch, was laid from the north terminus of the cement sidewalk on over the A general idea of the situation was shown by reference to Exhibits 3, 5, and 8 offered in evidence (photographs). Exhibit 3 was made with the camera looking south; Exhibit 8 is looking north; and Exhibit 5 shows the east end of the culvert and the embankment of earth above, down which it is claimed plaintiff fell.

Plaintiff's Evidence.

The plaintiff did not testify as a witness at the trial, although he was present throughout the trial. As to the facts surrounding the accident, plaintiff's case rests upon the testimony of the boy Fenton Kirk. The testimony of the latter on direct examination tended to prove that he and plaintiff were engaged in throwing rocks down the side of said embankment and over the end of the culvert; that while so engaged the embankment near the board walk caved in, causing plaintiff to slip and fall down the embankment into the creek. On photograph marked Exhibit 3 the Kirk boy pointed out a black dot (made in ink) as marking the place where plaintiff was standing on the east side of the board walk when the embankment caved. On cross-examination the Kirk boy said he and plaintiff had been rolling rocks down this embankment for about an hour; that they carried the rocks from the middle of the street east of the board walk some 3 or 4 feet, and to the place where the slope turns abruptly downward, then turned the rocks loose, "give them a little push," and in that way rolled them down the embankment; that the rocks were heavy to carry; that some of them were as large as a man's head; that they were watching the rocks as they were thrown down; that he had forgotten where plaintiff lit in the fall. The Kirk boy further testified that, when the earth caved, plaintiff fell on his back, with his head toward Thirty-First street; that while lying still on his back, at a place about 2 feet from the board walk, he rolled over once to get up, and rolled down the embankment. He further testified as follows:

"Q. But he was lying there still when he started rolling? A. Yes, sir.

"Q. Is that right? A. Yes, sir.

"Q. That was after the dirt had fallen and caved in? A. Yes, sir.

"Q. He was lying there still on his back? A. Yes, sir."

Defendant's Evidence.

The evidence in behalf of respondent tends to show that plaintiff and the little Kirk boy got heavy rocks from Spruce street, carried them across the narrow board walk to or near the edge of the dump, and roiled them down the embankment; that, while in the act of throwing a heavy rock, plaintiff's feet slipped on the wet ground and caused him to fall down the embankment as the result of a mere accident.

Mr. Julian Kerneckel, assistant city counselor, testified that, in the presence of his mother, he talked with plaintiff at the place of the accident; that, at the re-Quest of Mr. Kerneckel, plaintiff placed himself in the same position which he occupied when he fell, which was from; 4 to 41A feet east of the board walk; that plaintiff said nothing about the earth giving away, but, on the contrary, said he picked up a rock, and was about to throw it, when he lost his balance and went over; that, in the presence of plaintiff's mother, he reduced plaintiff's statement to writing, Which was signed by plaintiff and his mother, and which reads as follows:

"I am seven years old and will soon be eight. I went out in the street and got a rock and was standing at top of bank and was going to throw it when slipped and went down the bank and over the edge of the wooden sewer."

Mr. George W. Meyer, assistant city counselor, testified that he interviewed the witness Fenton Kirk concerning this accident; that Fenton said, while he and plaintiff were throwing rocks down the embankment, plaintiff slipped and fell; that the Kirk boy said nothing at all about any caving of the embankment.

Defendant offered in evidence the written statement of Fenton Kirk, which contains the following:

"Charles [plaintiff] was standing at the very edge of the incline, had just thrown a rock into the creek below, when his foot slipped in the mud on the edge of the bank and he rolled down the hill and over the bridge into the bed of the creek below. The three boys Charles and Clarence Marshall and Fenton Kirk were playing around the bridge a little while before Charles Marshall fell, and the children had been throwing stones into the creek and playing on top the hill and around the scene of the accident before Charles was hurt."

Mr. A. F. Smith, a practicing lawyer in Kansas City for many years, testified that, while assistant city counselor of Kansas City, he had charge of the defense of this case; that he and witness Kerneckel went together to the scene of the accident, after getting plaintiff and his mother to go with them; that on this occasion plaintiff pointed out where he Was standing when he fell, which was either on or just down the brow of the embankment from which position plaintiff said he slipped, while in the act of throwing a rock, down the embankment; that plaintiff said nothing about the embankment breaking away, hut, on the contrary, that it was wet and he slipped.

The defendant read from plaintiff's testimony given on a former trial of the case, where he testified that, while throwing rocks in the water under the culvert, his feet slipped on the wet ground, causing him to fall over the end of the culvert; that he did not tell defendant's witnesses that the earth gave away; that his feet slipped, because the earth was wet, and that is what caused him to fall. The evidence of defendant tended to show that plaintiff's fall was brought about by purely accidental causes.

The jury found in favor of defendant, and plaintiff appealed.

The matters complained of by appellant will be considered in the opinion.

Opinion.

I. Appellant complains of the trial court's action in permitting Robert W. Waddell to testify on cross-examination as follows:

"Q. And no provision is attempted to be made for any person using any other part of the street over the fill other than what is provided by the two boards? * * * A. No, sir; there is no provision made for using any other part."

The foregoing was objected to by counsel for plaintiff, on the ground that it called for a conclusion.

Mr. Waddell was sworn as a witness in behalf of appellant, and, after stating he was city engineer of defendant, was examined as follows by plaintiff's counsel:

"Q. Have you under your official custody and control maps and drawings showing the measurements of the various streets of this city and their dedication and setting them apart as public highways? A. Yes, sir."

After being examined as to the plans concerning the improvement of Spruce street, the following occurred:

"Q. And what provision is made in the plans for parking between the curbing and the sidewalk proper, if any? A. The sidewalk space is graded to the established grade of the street, and then the sidewalk is put in, and nothing is done to the dirt between the edge of the sidewalk proper and the curb."

At the instance of plaintiff, said witness further testified:

"Q. And in accordance with the plans you have in mind there, and in accordance with...

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