25 S.W. 562 (Mo. 1894), Barr v. City of Kansas

Citation:25 S.W. 562, 121 Mo. 22
Opinion Judge:Black, P. J.
Party Name:Barr v. The City of Kansas, Appellant
Attorney:F. F. Rozzelle, C. E. Pratt and J. W. S. Peters for appellant. Warner, Dean & Hagerman and James Hagerman for respondents.
Judge Panel:Black, P. J. Barclay, J., absent.
Case Date:March 05, 1894
Court:Supreme Court of Missouri
 
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Page 562

25 S.W. 562 (Mo. 1894)

121 Mo. 22

Barr

v.

The City of Kansas, Appellant

Supreme Court of Missouri, First Division

March 5, 1894

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

F. F. Rozzelle, C. E. Pratt and J. W. S. Peters for appellant.

(1) A city is under obligation only to keep its streets in a condition reasonably safe for persons using them with ordinary care. Blake v. St. Louis, 40 Mo. 569; Brennan v. St. Louis, 92 Mo. 487; Maus v. Springfield, 101 Mo. 613; Walker v. City of Kansas, 99 Mo. 652; Hanniford v. Kansas City, 103 Mo. 181. (2) A person can not rely upon the presumption that city streets are reasonably safe for his use when there is an open defect in the way that he could readily have seen had he looked. Jones on Neg. Mun. Corp., secs. 219, 241, and cases; Chicago v. McLean, 133 Ill. 148; Murphy v. Railroad, 38 Iowa 539; Messenger v. Pate, 42 Iowa 443. (3) There is a difference between a sidewalk and a street in the uses to which they are ordinarily applied. A foot passenger must exercise a greater degree of care when upon a street than when traversing a sidewalk and must be especially careful when upon a street at a point other than at a regular crossing. Henry v. Railroad, 113 Mo. 536; Roe v. City of Kansas, 100 Mo. 193; O'Laughlin v. Dubuque, 42 Iowa 539; Houston v. Isaacs, 3 S.W. (Texas), 693; McClary v. Sioux City, 3 Neb. 44. Wood Ass'n v. Dubuque, 30 Iowa 176; Girard v. Boston, 108 Mass. 580; Coombs v. Purrington, 42 Maine, 332. (4) He who does what is more than ordinarily dangerous is bound to use more than ordinary care. Morgan v. Cox, 22 Mo. 373; Vaughan v. Reed, 30 Mo. 600; Teddy v. Railroad, 40 Mo. 506. (5) The issue of contributory negligence is for the jury upon the facts. Barr v. City of Kansas, 105 Mo. 558; Maus v. Springfield, 101 Mo. 615. (6) It is error to give instructions upon a theory which has no evidence to support it. Bergeman v. Railroad, 104 Mo. 90; Norton v. Railroad, 40 Mo.App. 447; Gerren v. Railroad, 60 Mo. 410; Evans v. Railroad, 106 Mo. 594; Thompson on Charging Jury, p. 175; Dowling v. Allen, 88 Mo. 293; Edwards v. Myers, 22 Mo. 481. (7) Questions of fact are in the first instance exclusively for the jury and an instruction which assumes the existence of facts put in issue by the pleadings is always erroneous. The court can only assume the existence of facts when they are admitted by the pleadings, or admitted at the trial. Thompson v. Butts, 8 Mo. 710; Choquette v. Barrada, 28 Mo. 491; Dowling v. Allen, 88 Mo. 293. (8) What constitutes "contributory negligence" should be explicitly explained by the court and a definition given thereof. Railroad v. Enches, 127 Penn. St. 316; 14 Am. St. Rep. 848; Wyatt v. Railroad, 62 Mo. 411; Goodwin v. Railroad, 75 Mo. 73. (9) Evidence as to probable duration or extent of injuries is not competent and damages can not be given for such probable results. 3 Sutherland on Damages, 261; Fry v. Railroad, 45 Iowa 416; White v. Railroad, 61 Wis. 536; Bigelow v. Railroad, 48 Mo.App. 370; Strohm v. Railroad, 96 N.Y. 305; Clark v. Land Co., 6 Nev. 203; Shearman and Redfield on Negligence, sec. 743. (10) Instructions should not specially call attention to isolated facts or give them undue prominence. Barr v. City of Kansas, 105 Mo. 559; Shaffner v. Leary, 21 Mo.App. 110; Jones v. Jones, 57 Mo. 142. (11) Damages were excessive. Jones on Neg. Mun. Corp., sec. 448, and cases cited. (12) Instruction number 2 was erroneous in informing the jury that plaintiff had the right to assume that the carriage or driveway portion of the street was safe for pedestrians. Lynch v. Railroad, 112 Mo. 420; Chicago v. Morse, 33 Ill.App. 62; Aurora v. Hillman, 90 Ill. 61; Allene v. LeMars, 71 Iowa 654; Raymond v. Lowell, 6 Cush. 524; Roe v. City of Kansas, 100 Mo. 193. (13) The action of the court in directing the sheriff to summon certain persons to complete the special venire to try this cause was erroneous. Session Acts, 1891, p. 172. (14) The plaintiff was not entitled to recover under any view of the evidence. Her own testimony and the undisputed testimony of her witnesses show that she was guilty of such contributory negligence as bars a recovery. Moxley v. Railroad, 113 Mo. 1; Lynch v. Railroad, 112 Mo. 420.

Warner, Dean & Hagerman and James Hagerman for respondents.

(1) The jury was properly drawn and entirely competent. Thompson and Merriam on Juries, secs. 90, 103, 125; Proffatt on Jury Trial, sec. 73; Sess. Acts, 1891, pp. 172 to 175; State v. Sansone, 116 Mo. 1; State v. Matthews, 88 Mo. 121; Vierling v. Co., 15 Mo.App. 140. (2) There was no error in the admission of evidence. Evidence as to probable duration or extent of injuries is competent, and damages may be given for such probable results. Griswold v. Railroad, 42 Am...

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