Ford v. Kansas City
| Decision Date | 23 March 1904 |
| Citation | 79 S.W. 923,181 Mo. 137 |
| Parties | FORD, Appellant, v. KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Jno. W. Henry, Judge.
Reversed and remanded.
L. A Laughlin for appellant.
(1) The court erred in admitting evidence of specific instances of intoxication of plaintiff months prior to the accident. Brown v. Railroad, 66 Mo. 597; Owens v Railroad, 95 Mo. 182. The character and habits of plaintiff were not material to any issue in the case, and therefore its admission was reversible error. Vawter v Hultz, 112 Mo. 633; Gutzwiller v. Lackman, 23 Mo. 168; Rogers v. Troost, 51 Mo. 470; Alkire Grocery Co. v. Tagart, 78 Mo.App. 166; Shoe Co. v. Hilig, 70 Mo.App. 301. Not only was the testimony irrelevant and immaterial, but it was incompetent. The testimony related to two or three instances of intoxication. Character and habits can not be proved by specific acts or instances. It is well settled in this State and elsewhere that the character of a witness may be impeached by general evidence of reputation, but not by evidence of particular acts. State v. White, 35 Mo. 500; Hawkins v. Globe Ptg. Co., 10 Mo.App. 174; State v. Welsor, 117 Mo. 570; State v. Evans, 158 Mo. 589; Railroad v. Strond, 67 Ark. 112; Totarella v. Railroad, 53 A.D. 413. (2) The court erred in admitting in evidence section 17, article 3, of the charter of Kansas City, and section 831, Revised Ordinances. Whatever may be the obligation of the abutting property owner to the city when ordered by it to repair or build a sidewalk, and whatever may be his liability for defective construction when he undertakes to do it, he is under no duty to the public to keep the sidewalk in front of his premises in repair, and is not liable for failure to do so. Baustian v. Young, 152 Mo. 325; Beck v. Brewing Co., 167 Mo. 195; Reedy v. St. Louis Brew. Assn., 161 Mo. 523; Independence v. Slack, 134 Mo. 66; St. Louis v. Ins. Co., 107 Mo. 92; Norton v. St. Louis, 97 Mo. 537; Blackwell v. Hill, 76 Mo.App. 46.
R. J. Ingraham and L. E. Durham for respondent.
(1) Evidence of alchoholism and specific instances of intoxication prior to the accident was competent in this case to show that the permanent injuries complained of were due to dissipation entirely. Elliott v. Kansas City, 74 S.W. 617; Brown v. Railroad, 66 Mo. 588. Plaintiff's objection to such evidence is removed by his own instruction, numbered 4. Stephens v. Railroad, 96 Mo. 215; O'Mellia v. Railroad, 115 Mo. 221; Anderson v. Terminal Co., 161 Mo. 420; State v. Yandle, 166 Mo. 594; Fowles v. Beebe, 59 Mo. 403. (2) Plaintiff's objection to the introduction of section 831 of the city ordinances was too general to permit him to assert here that said section is in violation of certain provisions of the Constitution. Ash v. City of Independence, 169 Mo. 77; Brown v. Railroad, 74 S.W. 973; State ex rel. v. Smith, 75 S.W. 468; James v. Association, 148 Mo. 18; Russell v. Glasser, 93 Mo. 360; sec. 864, R. S. 1899. (a) A general objection is insufficient where evidence is admissible for any purpose. Dunkmann v. Railroad, 95 Mo. 242; State ex rel. v. Smith, 75 S.W. 468; State v. Wright, 134 Mo. 418. (b) Said ordinance was admissible as evidence of contributory negligence. Avery v. Syracuse, 29 Hun 539. (c) Said ordinance is a valid exercise of the charter power of Kansas City. Kansas City v. Scarritt, 127 Mo. 642. (3) The city is bound to exercise only ordinary care in maintaining its sidewalks, that is, the care of an ordinarily prudent man under similar circumstances. Hence defendant's instructions are correct. Letherow v. Railroad, 98 Mo. 74; Keown v. Railroad, 141 Mo. 86; Stanley v. Depot Co., 114 Mo. 606.
This is an action for damages for personal injuries received by plaintiff which were caused by a fall on a defective sidewalk in Kansas City.
At the time of the accident plaintiff was living with his family in a dwelling house at the southeast corner of Sixteenth and Holmes streets. The owner of the property was one J. B. Morrison, and plaintiff rented the premises from him and sublet rooms in the house to other parties. The house faced west on Holmes street and the depth of the lot was along Sixteenth street. There was a plank sidewalk on the south side of Sixteenth street, alongside of the premises, which had been put down some years before.
About 11 o'clock in the morning of February 7, 1899, plaintiff left his home with his son, a young man about seventeen years old, to look at some work. They were accompanied to the door by Mrs. Ford and her sister, Cora Bond. Plaintiff and his son went out the front gate, turned north to the corner, and thence went east on Sixteenth street over the sidewalk referred to. When about opposite the middle of the house the son, who was walking next to the fence, stepped on a loose plank, which flew up at the outer end and caught plaintiff's feet and tripped plaintiff so that he fell. In falling plaintiff struck his left arm on the curb stone, fracturing it and wrenching his hips. Plaintiff was assisted to arise by his wife and son and Miss Bond and went back into the house, where he remained for about six weeks. The evidence for the plaintiff showed that the plank which caused plaintiff to trip had been loose for two or three weeks and that the outside stringers had rotted away, causing the board to tilt on the middle stringer.
Plaintiff is a painter and paper hanger and at the time of the trial in November, 1898, had been able to do but little work. The trial resulted in a verdict and judgment for the defendant, from which plaintiff has appealed to this court.
Plaintiff, in his petition, alleges that he sustained permanent injuries. He testified at the trial that his left shoulder was paining him at the time; that his arm seemed sore all the time; that in taking a little cold, or just before rain comes on, or in cloudy weather, it pained him terribly; and that he could not use his arm to reach up or down on account of stiffness and soreness. Also, that he had incontinence of the urine, and that all of said injuries were caused by the fall on a defective sidewalk.
The defendant, in its answer, denied the allegations of plaintiff's petition, and introduced evidence at the trial, tending to prove that the permanent injuries complained of were not the result of any fall which plaintiff may have had, but due to gonorrheal rheumatism and the use of intoxicating liquors. Defendant introduced the evidence of plaintiff's physician, Dr. Higdon, who testified that he had treated plaintiff in August, 1898, five months prior to the accident, for gonorrheal rheumatism. The doctor testified further that when he was called in at that time he found plaintiff suffering from morphine poisoning brought about by medicine that plaintiff had taken to allay the pains of rheumatism; that he found plaintiff had gonorrhea of long standing; and that he attributed his rheumatic trouble to gonorrheal rheumatism.
Defendant also introduced the evidence of Dr. Mount, another one of plaintiff's physicians, who testified that in the year 1898, he treated plaintiff for alcoholism, that is a nervous condition brought on by excessive use of intoxicating liquor. And to further prove that plaintiff was addicted to the use of intoxicating liquor, defendant introduced the evidence of specific instances of intoxication complained of by plaintiff.
Defendant further showed by Dr. Higdon that the probable effect of gonorrheal rheumatism upon a person addicted to the use of liquor would be to cause a stiffness of the muscles which would cause pain upon movement.
The evidence of specific instances of intoxication was introduced for the avowed purpose of showing that the effects of liquor on the system of plaintiff had produced the permanent injury which he claimed was brought about by the fall upon the sidewalk. No pretention was made at the trial that such evidence was to be considered as proof of plaintiff's negligence, and the court, at the request of plaintiff, instructed the jury at the close of the evidence that the intoxication of plaintiff prior to the accident constituted no defense to the action and that they should disregard such testimony, unless they found that such intoxication caused "wholly or in part" the physical condition of plaintiff since the injury. The court also gave an instruction at the instance of the defendant (No. 9) which confined the evidence to the same purpose.
Defendant also pleaded as a defense to this case that the plaintiff was guilty of such contributory negligence as to bar a recovery. It developed in the evidence that the plaintiff fell on the walk in front of the premises where he was living at the time. Defendant introduced in evidence section 831 of the Revised Ordinances of Kansas City, which requires the owner or occupant of real property to keep the sidewalk in front of the property in repair. The express purpose for which the ordinance was introduced, as given by the counsel for defendant at the trial, was to show that the plaintiff knew, or ought to have known of the condition of the sidewalk complained of, and consequently the ordinance was evidence tending to show contributory negligence.
OPINION.Upon this appeal, there are three propositions presented to this court for review:
First. It is contended that the court committed error in the admission of specific instances of intoxication of the plaintiff.
Second. That the court erred in the admission of the ordinance which provides that the owners or occupants of real property shall keep the sidewalk, curbing and guttering in front of the property in good repair and order.
Third. That instructions numbered 4 and 9, given for defendant, are...
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