Hitt v. Kansas City
| Decision Date | 27 February 1905 |
| Citation | 85 S.W. 669,110 Mo.App. 713 |
| Parties | PHOEBE M. HITT, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Johnson Circuit Court.--Hon. Wm. L. Jarrott, Judge.
AFFIRMED.
Cause affirmed.
R. J Ingraham and Jas. W. Garner for appellant.
(1) Plaintiff's instruction numbered 1 does not require the jury to find that a sufficient time had elapsed before the injury (and after notice actual or constructive) for the defendant by the exercise of ordinary care to have repaired the walk where plaintiff claims to have fallen. Baker v Independence, 106 Mo.App. 507, 81 S.W. 501; Gerber v. Kansas City, 105 Mo.App. 191, 79 S.W. 718; Richardson v. Marceline, 73 Mo.App. 360; Maus v Springfield, 101 Mo. 613; Yocum v. Trenton, 20 Mo.App. 493; Doherty v. Kansas City, 105 Mo.App 173, 79 S.W. 716; Quinlin v. Kansas City, 104 Mo.App. 616; Burns v. St. Joseph, 91 Mo.App. 491. (2) The court erred in telling the jury in instruction numbered 2 and also in instruction numbered 5, that the plaintiff had the right to assume the walk was in a reasonably safe condition for the use of the public. Wheat v. St. Louis, 179 Mo. 579; Hutchings v. Priestly, 61 Mich. 352; Moberly v. Railway, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 428; Myers v. Kansas City, 108 Mo. 487. (3) The court erred in giving instruction numbered 7 because it authorized the jury to disregard the evidence of experts without any regard to the other evidence or circumstances in the case. State v. Witten, 100 Mo. 528; Wood v. Barber, 49 Mich. 296; Cosgrove v. Leonard, 134 Mo. 434; Stevens v. Minneapolis, 42 Minn. 136; Kansas City v. Street, 36 Mo.App. 656. (4) The damages in this case were excessive and were not justified under the evidence in the case.
Hardin & Taylor for respondent.
(1) We ask that the appeal in this case be dismissed and the cause stricken from the docket for want of jurisdiction, on account of there being no proper affidavit for appeal, as required by law. R. S. 1899, sec. 808. The statutory requirements must be strictly complied with. Railroad v. Powell, 104 Mo.App. 362; Schnabel v. Thomas, 92 Mo.App. 180; Thomas v. Ins. Co., 89 Mo.App. 12. (2) The court committed no error in giving plaintiff's instruction numbered 1. Small v. Kansas City, 185 Mo. 291. Where the instruction is set out by Judge MARSHALL and expressly approved. (3) Appellant is unfair in its criticism of instructions numbered 2 and 5 given for plaintiff. The court did not say that the plaintiff had the right to assume the walk was reasonably safe. But in both of said instructions the jury are told that "in the absence of knowledge to the contrary" she had the right to assume that the defendant had performed its duty to the public. And the instructions are the law. Perrette v. Kansas City, 162 Mo. 238; Holloway v. Kansas City, 184 Mo.App. 19, 82 S.W. 89; Weller v. Railway, 164 Mo. 180. (4) The phrase "long time," used in instruction numbered 2 given for plaintiff, is not "an indefinite expression," as claimed by appellant. Shipley v. Bolivar, 42 Mo.App. 401; 2 Shear. & Redf., Neg., sec. 369; Franke v. St. Louis, 110 Mo. 523. "The damages in this case were excessive." They may be; but we deny that the amount awarded plaintiff is excessive. The testimony of the doctors, as in all cases, was conflicting. It was left for the jury, under appropriate instructions, to say whether plaintiff's injuries are permanent. Small v. Kansas City, 185 Mo. 291.
This suit was begun in the circuit court of Jackson county but was taken on change of venue to Johnson county. The facts on plaintiff's side were: That plaintiff while walking over a side-walk of defendant city in March, 1902, at night, in the company of her two daughters, fell and was severely injured. The sidewalk in question was on the west side of and adjoining what is known as Convention Hall. That while she was passing along said walk she stepped into a hole which caused her to fall. It was shown that she was unacquainted with said sidewalk and that she was going along in the ordinary manner. Plaintiff's evidence was to the effect that said sidewalk was in an unsafe condition by reason of depressions and holes in the same. She testified that her foot became fastened in a hole and it had to be pulled out after she fell; and that she fell forward on her knees, at which time her two daughters who were with her were walking on each side of and supporting her. She is corroborated in her statement as to how she received her injury by Mrs. Taylor, one of the daughters so with her. The other daughter is since deceased.
Defendant's evidence was to the effect that the walk was composed of concrete with a top layer of asphaltum; that it was in reasonably safe condition; that there were some depressions of a saucer or dish shape; that the sides of the depressions gradually sloped toward the center; and that there were no abrupt or broken edges to those depressions. It is conceded that whatever the condition of said walk, it was the result of heat from the fire which destroyed said hall in the month of April, 1900, except that there was some evidence that steel beams from the burned building fell with their ends against the walk making holes in the same. It is not denied that whatever its condition may have been the defendant had notice of it.
The trial resulted in a verdict for the plaintiff for $ 5,000, of which sum she entered a remittitur of $ 500; whereupon judgment was rendered in her favor for $ 4,500, from which defendant appealed.
Objection is made to plaintiff's instruction numbered one for the reason that it does not require the jury to find that a sufficient time had elapsed after notice of the defects in the walk for defendant to have repaired same. A similar instruction was held to be error in Baker v. Independence, 106 Mo.App. 507, 81 S.W. 501; Gerber v. Kansas City, 105 Mo.App. 191, 79 S.W. 717; Richardson v. Marceline, 73 Mo.App. 360; Maus v. Springfield, 101 Mo. 613, 14 S.W. 630. There are numerous other cases in this State to the same effect. It may be conceded that in all cases where it is a question as to whether a city has had a reasonable time within which to remedy a defect in its street after notice of such defect, to repair the same before an injury resulting therefrom, an instruction like the one in question would be defective. But where the defect has existed for a long time, the law presumes knowledge upon the part of the city and that it has had reasonable time within which to remedy such defect. In Small v. Kansas City, 185 Mo. 291, 84 S.W. 901, it is held that an instruction like the one in question under a similar state of facts was proper. In that case the defect had existed for over a year and the city's inspector had known of it for more than three months before the accident. The language of the court is: "There is no room in this case, therefore, for the application of the doctrine that the city must not only have actual or constructive notice of the defect in the sidewalk, but must also have a reasonable time within which to repair it." In this case the defect had existed for nearly two years. In such cases the law will presume that defendant had not only notice of the defect in the sidewalk, but also that it had sufficient length of time in which to repair it.
Instructions numbered two and five told the jury that plaintiff had the right to assume that the walk in question was in a reasonably safe condition for the use of the public. These instructions are criticised on the ground that the street was well lighted and that plaintiff could have discovered any defect if it existed had she exercised her senses while passing over it. There can be no denial but what the instructions state the law and that plaintiff had the right to assume that the sidewalk was reasonably safe. Yet, she was required to exercise proper care while passing over it, and if her injury was the result of want of such care she was not entitled to recover. But that was a question for the jury under the evidence and not a question for the court.
It is insisted that plaintiff had ample opportunity for knowledge of the condition of the sidewalk to have avoided the injury. If the fact that the place was well lighted is to be taken as conclusive evidence against her, then defendant's contention is correct; otherwise, it is not. That is all the evidence in the case that would have justified the jury in finding that the plaintiff was not in the exercise of ordinary care. If she had looked for the defect she would undoubtedly have seen it. But she was not required to do this. She had the right, in the absence of knowledge to the contrary, to feel secure, presuming that the city had performed its duty in keeping its sidewalks safe and the fact that the place was well lighted was no evidence of itself, unsupported by any other...
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