Bailey v. Kansas City

• Decision Date: 24 May 1905
• Parties: BAILEY v. KANSAS CITY.
• Court: Missouri Supreme Court

87 S.W. 1182

189 Mo. 503

BAILEY v. KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS —PLEADING—EVIDENCE — MAKING OF REPAIRS—ORDINANCES—TRIAL — OBJECTIONS TO EVIDENCE — RENEWAL OF OBJECTIONS — WAIVER OF ERRORS.

1. In an action against a city for injuries caused by a defective sidewalk, where it was

admitted by stipulation that the place in question was a public street and under defendant's control, but its defective condition was strongly contested, evidence that the city, after the date of the injury, notified the abutting property owner to repair the sidewalk, and subsequently itself repaired or reconstructed it, is incompetent and prejudicial.

2. The general objection of irrelevancy, immateriality, etc., is sufficient, where the evidence objected to is not competent for any purpose.

3. In an action against a city for injuries caused by a defective sidewalk, an objection to evidence of repairs made by the city, on the ground that "it showed that the repairs were made subsequent to the date of the injury," was sufficiently specific to present the question of the incompetency of the evidence as an admission by the city of the defective condition of the sidewalk.

4. Where a proper objection is squarely made at the threshold of the admission of the first item of a class of evidence, the objector need not, in order to preserve his rights in case the objection is disallowed, persist in making the same objection to other items of the same class of evidence.

5. Where a party does not invite an error in the admission of evidence, but ineffectually protests against the same, he does not waive his right to urge the admission of the evidence as error by subsequently introducing evidence of the same kind in order to counteract the effect of the evidence introduced.

6. Where a petition against a city counts on the defective condition of a sidewalk and the city's negligent failure to repair the same, and is not based on any violation of municipal ordinances, it is not necessary to plead ordinances which are desired to be used for evidential purposes.

7. In an action against a city for injuries caused by a defective sidewalk which the city negligently failed to repair, municipal ordinances requiring property owners to keep sidewalks in repair, directing the city engineer to notify property owners to repair, and authorizing the board of public works to let contracts for such repair, are irrelevant.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Agnes C. Bailey against Kansas City. From a judgment for plaintiff, defendant appeals. Reversed.

R. J. Ingraham and L. E. Durham, for appellant. Hardin & Taylor, for respondent.

LAMM, J.

Suit for personal injuries, based on alleged negligence of appellant in permitting a defective sidewalk along one of its public streets. Judgment March 3, 1903, for $6,300, from which appellant, in due form, appeals.

Mrs. Bailey, a widow of 58 years of age, on the 10th day of January, 1898, was walking north at 4 p. m. on the east side of Vine, close to Twelfth, street, in company with a Mrs. Ramp, in Kansas City, Mo., on a sidewalk built of pine planks athwart pine stringers. Mrs. Bailey was carrying home sundry purchases, to wit, a quart of milk, some "cottosuet," and wrapped-up parcels of "brick mush," meat, and cigarettes; and these ladies were discoursing with animation, and possibly absorbingly, on the boyish use of cigarettes. Her theory of the accident is that Mrs. Ramp stepped upon a loose sidewalk board, which, tilting, tripped respondent, who fell prone and heavily to the sidewalk. Appellant's theory is that the sidewalk was in good condition, but that Mrs. Bailey was subject to "fainting spells," and her fall originated in such malady. Whichsoever theory be true, respondent's violent fall is undisputed; and, while the extent and character of her resulting injuries are sharply disputed, yet that she was hurt is beyond cavil or doubt. She weighed 215 pounds. She was off her guard, and at her age, with such a fall, the thing somewhat comes within the maxim res ipsa loquitur. Her case was tried once in Kansas City, resulting in a verdict for $1,500, which was set aside on motion of defendant. It was tried again, resulting in a verdict for defendant, which was set aside on her motion. It was tried the third time, on a change of venue to Clay county, on a fourth amended petition, which alleged, inter alia, that Vine street was a public thoroughfare in Kansas City; that said city caused a wooden sidewalk to be laid along the same; that on the 10th day of January, 1898, and a long time prior thereto, said sidewalk was and had been defective and unsafe; that certain boards in said sidewalk at a given point were, and for a long time had been, loose and detached from the stringers; that said stringers were rotten, and had been permitted to remain so for a long time through defendant's negligence, which defects in the sidewalk defendant knew, or by the exercise of proper care might have known; that, while walking with due care on said sidewalk with Mrs. Ramp, she (Mrs. Ramp) stepped upon the end of a board, loose as aforesaid, which flew up, tripping and throwing plaintiff to said sidewalk with violence, whereby her right hip was strained, wrenched, dislocated, and permanently injured; her right knee bruised, strained, and injured; her spine, right side, and shoulder and right leg severely injured, permanently crippling her—for all of which, as well as for certain medicinal and surgical outlays, nurse and servant hire, she prays $10,000 damages. The answer was a general denial, coupled with a plea of contributory negligence.

Respondent introduced a mass of evidence tending to prove all the allegations of hen petition. On the other hand, appellant introduced a mass of testimony tending to show that the sidewalk was in a reasonably good condition; that no loose boards, rotten stringers, or other defects existed at the place she fell; and evidence, in addition, that her injuries were grossly colored for speculative ends. In this condition of things, respondent was permitted to introduce sections 832, 833, 834, 835, 836, 840, 841, 842, 843, and 844 of a certain ordinance of appellant city, relating to the duties of its street commissioner. Section 832 being directed to the duty of the owner or occupant of a house to not permit sidewalks in front of or along his premises to be or remain out of repair, etc.; section 834 provides that the city engineer shall notify such owner to make needed repairs, etc.; section 835 provides for a second notice if said repairs be not made within the time limited in the former notice; section 836 provides that, if the sidewalk requires immediate repairs, the city engineer may order them made by the city contractor; section 840 provides that the board of public works is authorized to let contracts for the reconstruction and repairing of sidewalks to a city contractor, etc.; section 841 provides a scheme for carrying into effect section 840; section 842 provides a scheme for special tax bills for sidewalk repairs; section 843 provides for the inspection of sidewalks; and section 844 provides for the method of issuing tax bills for repairs, the apportionment, computation, etc., of the cost, together with the terms of the bills. This ordinance was objected to "because not pleaded in plaintiff's petition," which objection was overruled, and exception saved. A stipulation was then introduced by respondent, the pertinent part of which is as follows: "It is hereby stipulated by and between the parties to the above entitled cause that the following facts shall be taken as true on the trial of said cause: That Vine street and the sidewalk on the east side thereof from Twelfth street north to Eleventh street, all in Kansas City, was on the 10th day of January, 1898, and for a long time prior thereto, a public street and thoroughfare, and in full possession and control of the defendant, Kansas City." After the...