34 S.W. 590 (Mo. 1896), Benjamin v. Metropolitan Street Railway Co.

Citation:34 S.W. 590, 133 Mo. 274
Opinion Judge:Macfarlane, J.
Party Name:Benjamin et al. v. Metropolitan Street Railway Company, Appellant
Attorney:James Black and Pratt, Ferry & Hagerman for appellant. Scarritt, Griffith & Jones for respondents.
Case Date:March 10, 1896
Court:Supreme Court of Missouri
 
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Page 590

34 S.W. 590 (Mo. 1896)

133 Mo. 274

Benjamin et al.

v.

Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri, First Division

March 10, 1896

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

James Black and Pratt, Ferry & Hagerman for appellant.

(1) There was error in overruling the motion to quash the panel of jurors drawn under the act of April 1, 1891. Said act is unconstitutional in that it violates section 53, article 4, of the constitution. State v. Kring, 74 Mo. 612; State ex rel. v. Miller, 100 Mo. 439; State ex rel. Richards v. Hammer, 42 N. J. L. 436. (2) The negligence, if any, and the cause of the injury was the act of Seymore, for which the coal company and not this defendant is liable because, under the facts, Seymore was not the servant of defendant. Bennett v. Truebody, 66 Cal. 509; Clapp v. Kemp, 122 Mass. 481; McCullough v. Sherman, 105 Pa. St. 169; Fuller v. Bank, 15 F. 875; Sweeney v. Murphy, 32 La. Ann. 628; Stevens v. Armstrong, 6 N.Y. 435; Schermerhorn v. Gas Co., 5 Daly, 144; Larow v. Clute, 14 N.Y.S. 616; Sawyer v. Martins, 25 Ill.App. 521; DeForest v. Wright, 2 Mich. 368; Kellogg v. Payne, 21 Iowa 575; Linton v. Smith, 8 Gray, 147; Wood v. Cobb, 13 Allen, 58; King v. Railroad, 66 N.Y. 181. (3) More than this, the coal company was an independent contractor, which excuses and relieves the defendant. Bennett v. Truebody, 66 Cal. 509; McKinley v. Railroad, 40 Mo.App. 449; Barry v. St. Louis, 17 Mo. 121; Clark v. Railroad, 36 Mo. 202; Blumb v. City of Kansas, 84 Mo. 112. (4) The true test of defendant's liability, if any, under the facts in this case, was negligence in failing to discover that Seymore left the coal cover out of place. Lampert v. Gas Co., 14 Mo.App. 376; Kirkpatrick v. Knapp & Co., 28 Mo.App. 428; Grogan v. Foundry Co., 87 Mo. 321; Bennett v. Truebody, 66 Cal. 509; Clapp v. Kemp, 122 Mass. 481; Daniel v. Potter, 4 Car. & P. 262; Harrison v. Collins, 86 Pa. St. 153; Doherty v. Waltham, 4 Gray, 596; Fisher v. Thirkell, 21 Mich. 1; Clark v. Fry, 8 Ohio 358; Cooley on Torts [1 Ed.], 626, 627. (5) Since the time the coal cover was displaced before the accident could not have exceeded fifteen minutes, there could in law have been no negligence in failing to discover such displacement; the time was too short. Lampert v. Gas Co., 14 Mo.App. 376; Harrison v. Collins, 86 Pa. St. 153; Klapp v. Milwaukee, 53 Wis. 196; White v. Gloversville, 12 Hun, 302; Sheel v. Appleton, 49 Wis. 125; Blakely v. Fry, 18 Hun, 157; Muller v. Newburgh, 32 Hun, 24; Sikes v. Manchester, 59 Iowa 36. (6) The deposition of Frank Seymore was erroneously excluded. R. S. 1889, sec. 4461; Frink v. Potter, 17 Ill. 406; Bradley v. Geiselman, 17 Ill. 572. (7) Whether a certain portion of the walk was safe or dangerous was not for the witnesses to say, even though they were experts. Griffin v. Willow, 43 Wis. 509; Koons v. Railroad, 65 Mo. 597; Eubank v. Edina, 88 Mo. 655; Gutridge v. Railroad, 94 Mo. 472; King v. Railroad, 98 Mo. 240; Naughton v. Stagg, 4 Mo.App. 271; Reid v. Ins. Co., 58 Mo. 521; Bills v. Ottumwa, 35 Iowa 109; Hambleton v. Railroad, 36 Iowa 31; Hughes v. Muscatine County, 44 Iowa 672; McDonald v. State, 27 N.E. 358; Ivory v. Deer Park, 22 N.E. (N. Y.) 1080; Bailey v. Railroad, 8 N.Y.S. 780; Bohr v. Neuneschorander, 22 N.E. 416; DeBerry v. Railroad, 6 S.E. (N. C.) 723; Yeaw v. Williams, 15 R. I. 20; Kold v. Sandwich Enterprise Co., 36 Ill.App. 419; Lincoln v. Barry, 5 Cush. 590; Ryerson v. Abingdon, 102 Mass. 526; Kelley v. Fond du Lac, 31 Wis. 179; Montgomery v. Scott, 34 Wis. 338. (8) Whether an appliance is carefully or carelessly constructed can not be submitted to the witnesses. Buxton v. Somerset Potters' Works, 121 Mass. 446; Mellor v. Utica, 48 Wis. 457; Grippen v. Town of Wilson, 43 Wis. 509; Hopkins v. Railroad, 78 Ill. 32; Railroad v. Ryals, 11 S.E. 499.

Scarritt, Griffith & Jones for respondents.

(1) Appellant's motion to quash the panel of jurors drawn under the act of April 1, 1891, was properly overruled. The act is not in violation of either section 53, article 4, or section 28, article 2, of the state constitution. Dunne v. Cable R'y Co., 32 S.W. 641; Coombs Com. Co. v. Block, 32 S.W. 1139; State v. Welsor, 117 Mo. 570. (2) The jury found as a fact under proper instructions of the court that the defendant's negligence was the cause of the plaintiff's injuries, and it requires no citation of authorities to show that appellate courts will not weigh the evidence in a case of this kind, if there is evidence to support the finding of the jury. (3) The fact that the careless act of an irresponsible driver of a coal wagon may have concurred in causing plaintiff's injury does not relieve the defendant from responsibility for its negligence. The concurrent negligence of a third person (even though such a fact has been proved and in this case it has not) would constitute no defense to this suit. Nagel v. Railroad, 75 Mo. 661; Yocum v Trenton, 20 Mo.App. 489; Becke v. Railroad, 102 Mo. 544; Boggs v. Railroad, 18 Mo.App. 275; Union, etc., Co. v. Schacklet, 10 N.E. 899; Kuttner v. Railroad, 29 Mo.App. 502; Little v. Hackett, 116 U.S. 366; Dickson v. Railroad, 104 Mo. 500; Kincaid v. Railroad, 62 Mo.App. 365; Waller v. Railroad, 59 Mo.App. 410; Musick v. Dold Packing Co., 58 Mo.App. 322; Haney v. City of Kansas, 94 Mo. 334. (4) The negligence charged, as has before been stated, was defective construction; hence, notice to or knowledge on the part of defendant of the defective coal hole is not essential to recovery. Barr v. Kansas City, 105 Mo. 550; Frank v. St. Louis, 110 Mo. 522; Hall v. Railroad, 74 Mo. 298; Keitel v. Cable R'y Co., 28 Mo.App. 657; Dickson v. Hollister, 16 A. 484. (5) It was not error to exclude the depositions of Frank Seymore, he being present in the court room while the trial was going on. R. S. 1889, sec. 4461; Schmitz v. Railroad, 119 Mo. 271; Schmitz v. Railroad, 46 Mo.App. 391; Carter v. Prior, 8 Mo.App. 577; affirmed by supreme court in 78 Mo. 222; Chapman v. Kerr, 80 Mo. 162; Kitchen v. Railroad, 59 Mo. 514. (6) "The subject concerning which the witness is to testify as an expert is one which must be determined solely by the court." Rogers on Expert Testimony [2 Ed.], 27; Thompson v. Ish, 99 Mo. 160; Benjamin v. Railroad, 50 Mo.App. 608; Dillard v. State, 58 Miss. 368; Perkins v. Stickney, 132 Mass. 218.

OPINION

[133 Mo. 279] Macfarlane, J.

Plaintiff obtained judgment in the circuit court for $ 2,000 against defendant, as damages for injuries received by reason of falling into a scuttle hole maintained by it in the public sidewalk adjacent to its property in Kansas City. An appeal was taken to the Kansas City court of appeals by which the cause was transferred to this court for the reason that the constitutionality of the Kansas City jury law was involved.

Defendant operated a street railroad in Kansas City, and maintained its power house on the corner of Twelfth and Charlotte streets. The basement of the building was used for storing coal used in its business. An excavation extended out under the sidewalk of Charlotte street, and coal was unloaded into the basement by means of four scuttle holes in the sidewalk...

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