Johnson v. City of St. Joseph
| Citation | 71 S.W. 106,96 Mo.App. 663 |
| Parties | JACOBINE JOHNSON, Respondent, v. CITY OF ST. JOSEPH, Appellant |
| Decision Date | 01 December 1902 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
AFFIRMED.
Judgment affirmed.
Kendall B. Randolph for appellant.
(1) The court erred in permitting the witness, Poteet, to testify as to the amount of voluntary travel over the road, termed by the pleadings Thirty-second street. Downend v. Kansas City, 156 Mo. 60; Carle v. DeSoto, 156 Mo. 443. (2) The court erred in admitting in evidence, over the objections of the defendant, special ordinance, number 512 showing the approval of the plat on the Oak Hill addition and also committed a like error in admitting in evidence the plat of both Mason Place and Oak Hill, and also committed error in admitting, over the objections of the defendant, permit number 7729, authorizing the setting of telephone poles, and also permit number 7284, permitting a plumber to open Lafayette street for the purpose of making a water connection, and also erred in admitting in evidence special ordinance number 2655, directing the water company to lay a main and street fire-hydrants. None of this evidence was competent to show acceptance of the street by the city, and all of it is governed by the same rule. Downend v. Kansas City, supra; Carle v. DeSoto, supra; Moore v. Cape Girardeau, 103 Mo. 470; Hunter v. Weston, 111 Mo. 176. (3) The court erred in overruling the demurrer to the evidence offered by the defendant city at the close of the plaintiff's evidence, and also after all of the evidence was in. There was no evidence whatever that Thirty-second street was a street of the city or had been accepted or adopted as such, and neither was there any evidence whatever that the street was in a dangerous condition. See authorities cited, supra. (4) The plaintiff's fourth instruction is erroneous because it tells the jury that if plaintiff was using such care as might be reasonably expected from an ordinarily prudent person at the time and under the circumstances then surrounding the plaintiff, then the jury must find that she was exercising reasonable care at said time. The correct rule is that the person must use such care as is ordinarily used by ordinarily prudent persons. Cohn v. Kansas City, 108 Mo. 392. (5) The fifth instruction given for plaintiff is not the law. The driver of the wagon was the plaintiff's son. She had put herself in the wagon under his charge, had agreed to go with him and to be driven by him, and his negligence is to be imputed to her. Hicks v. Railway, 124 Mo. 115.
J. A Connett and J. F. Woodson for respondent.
(1) The evidence in regard to the extent of the public travel over the street on which the injury occurred was properly admitted by the court as tending to show a recognition of the street by the city. The cases cited by appellant do not sustain his statement that such evidence was not admissible. Downend v. Kansas City, 156 Mo. 60. This is the settled rule in Missouri. There is nothing in the authorities cited by appellant militating against this position. (2) Appellant's demurrers were properly overruled. Baldwin v. Springfield, 141 Mo. 205; Downend v Kansas City, supra; Maus v. City, supra; Meiners v. St. Louis, 130 Mo. 284. (3) Plaintiff's fourth instruction properly defined the degree of care required on the part of plaintiff. Powers v. Ins. Co., 91 Mo.App. 55; Cohn v. Kansas City, 108 Mo. 392, cited by appellant in opposition to this instruction seems to expressly authorize and approve rather than condemn same. (4) Plaintiff's fifth instruction was not erroneous. It stated the correct rule on the doctrine of imputed negligence. Becke v. Railway, 102 Mo. 544; Dickson v. Railway, 104 Mo. 491.
The plaintiff is a woman who, at the time of the injury complained of, was about seventy years of age. She alleges that on the night of about the seventeenth day of August, 1901, while riding in a wagon with two other persons and her son, the latter of whom was driving, and while passing along on Thirty-second street in defendant city it was noticed that they were driving among the weeds lining said street; that it was a dark night and there being no street lamps or lights of any kind in that vicinity and that the son in attempting to guide the team into the beaten path unwittingly pulled them the wrong way so that the wagon and its occupants were precipitated down a perpendicular embankment several feet in height, throwing plaintiff out of said wagon and on to the ground with great force and violence and from which fall she sustained serious and permanent injuries; that said embankment ran lengthwise with said Thirty-second street and about the center thereof and was caused by the east side of said street being graded down so that the surface of said east side was five or six feet lower than the surface on the west side.
It was admitted on the trial of the case that on December 1, 1899, the limits of the city were extended so as to take in the place where the injury occurred, including the property on the east side thereof for a width east and west of one block and extending about one-half mile south to what was known as Mitchell avenue.
The following copy of plats of "Mason Place Addition" and "Oak Hill Addition" will assist in a proper understanding of the case:
[SEE ILLUSTRATION IN ORIGINAL]
It will be seen from said plat that Mitchell avenue is the first street south of Penn street and south of where the injury occurred. It is also shown by said plat that the first street north of the place of accident is Penn street, the second is Seneca street, the third is Lafayette street, and the fourth is Olive street. The west half of said Thirty-second street from Mitchell avenue north to and beyond Olive street was dedicated in October, 1888, and the other half in April, 1889.
On May 17, 1900, the defendant city by special ordinance directed the St. Joseph Water Company to extend its water mains on Twenty-eighth street from Penn street north to Seneca street, thence east on Seneca to Thirty-second street, and to erect fire-hydrants at each corner of said Seneca street at the intersection of Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first and Thirty-second streets, respectively. The defendant's city engineer on September 25, 1900, issued a permit to a telephone company to open Olive street, Thirtieth street and Thirty-first street for the purpose of setting up telephone poles. And in May, 1900, authorized a plumbing company to open Lafayette street between Thirty-first and Thirty-second streets for the purpose of making water connections for block 9, Oak Hill addition.
It was also shown that Thirty-second street had been used by the public as a public highway. There was no evidence other than that stated tending to show that the city assumed jurisdiction and control of said street, and there was no material conflict in the evidence.
There was a finding and judgment for the plaintiff from which the defendant city appealed. At the close of plaintiff's case the defendant submitted a demurrer to the evidence which was overruled. The principal contention is that the plaintiff upon her own showing was not entitled to recover.
In Downend v. Kansas City, 156 Mo. 60, 56 S.W. 902, the court...
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