Lindsay v. Kansas City

Decision Date29 March 1906
Citation93 S.W. 273,195 Mo. 166
PartiesLINDSAY v. KANSAS CITY, Appellant
CourtMissouri Supreme Court

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

Edwin C. Meservey and Francis M. Hayward for appellant.

(1) The verdict of the jury is not only not supported by evidence but is directly contrary to the evidence and cannot stand. Reman v. Boston Trading Co., 87 Mo.App. 186; Kreis v. Railroad, 30 S.W. 310; Lawson v Mills, 130 Mo. 170. (2) The damages assessed by the jury are excessive for the injury plaintiff sustained. Thomas v. Consolidated Traction Co., 62 N.J.L. 36; Ryder v Mayor, 50 N.Y. Super. 220; Railroad v. Anderson, 80 Ill.App. 71. (3) The first instruction asked by plaintiff as to damages is clearly erroneous, as not limited by the allegations of the petition. 2 Thompson on Trials, sec. 2309; Brown v. Railroad, 78 Mo. 504; Duke v. Railroad, 99 Mo. 347; Waddingham v. Hulett, 92 Mo. 528; Lester v. Railroad, 60 Mo. 265. (4) The court erred in admitting incompetent evidence on the part of the plaintiff, same being only opinion evidence and hearsay, which was prejudicial error. Sparr v. Wellman, 11 Mo. 230; Wetherell v. Patterson, 31 Mo. 458.

Ralph S. Latshaw and John S. Blackwell & Son for respondent.

(1) "Was the hole at the time of the accident guarded with lights or barricades?" This is, indeed, a vital question; but a question where there was reliable, abundant, and indeed, overwhelming and indisputable testimony by eight disinterested witnesses, that there were no danger signals, lights or barricades about the hole where plaintiff was injured shortly before and at the time that the carriage in which plaintiff was riding was thrown against and into said hole, thereby injuring plaintiff. (2) In appellant's motion for a new trial no particular instruction given by the trial court at the instance of respondent, is complained of; said motion for a new trial says: "7. The court erred in giving the instruction to the jury at the instance of plaintiff." However, the instruction set out in appellant's argument is in nowise subject to the construction that appellant would place upon it. (3) In the case of Reynolds v. Railroad, 88 S.W. 52, an instruction much broader as to measure of damages was approved by this court, citing: Rodney v. Railroad, 127 Mo. 676; O'Connell v. Railroad, 106 Mo. 484; Duerst v. Stamping Co., 163 Mo. 617.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On the 27th of September, 1901, the plaintiff, Miss Clara Lindsay, commenced action for damages for personal injuries against Kansas City. In her petition she alleges that Kansas City is a municipal corporation organized under a freeholders' charter, and that Southwest boulevard is one of the streets in said city, used by the general public for the purpose of travel. It is then alleged that prior to and on the 13th day of July, 1901, the said city carelessly and negligently failed and neglected to place and maintain barriers, lights or other warnings at or near a hole in said Southwest boulevard to warn persons lawfully using said street, of said hole and said defects and dangers. It is then alleged that on the night of July 13, 1901, at about 10:30 o'clock, plaintiff was lawfully riding in a carriage in a southwesterly direction between Twenty-eighth and Twenty-ninth streets, and the carriage in which plaintiff was riding ran against and into said hole in said street and was overturned, and plaintiff precipitated therefrom with great force and violence onto the pavement, and her right elbow dislocated and her shoulder bruised and sprained and her neck and back and spinal column wrenched and strained, and plaintiff was injured in her internal organs; that on account of her injuries, she has been compelled to obligate herself for large sums of money for doctors and surgeons and nurse hire, and will as long as she lives be compelled to obligate herself for large sums of money, to-wit, $ 300; that on account of said injuries plaintiff has suffered, and will, so long as she lives, suffer great physical pain and mental anguish, and on account of said injuries was compelled to lose her means of livelihood for the month following said 13th day of July, 1901, to her damage in the sum of $ 30, and will in the future be compelled to lose her means of livelihood to her damage in the sum of five thousand dollars.

The answer was a general denial and a plea of contributory negligence on the part of the plaintiff and on the part of the driver who was in charge of the carriage at the time plaintiff was hurt.

A change of venue was awarded to the Lafayette Circuit Court. In that court the cause was tried to the court and a jury, and resulted in a verdict of five thousand dollars. In due time motions for new trial and in arrest were filed, heard and overruled, and the defendant appealed to this court. On the trial the testimony tended to establish the following facts:

The plaintiff was a single lady about thirty years of age, and had for six years previous to the injuries of which she complains been working constantly at her trade of linotype operator, earning twelve dollars a week. On the night of July 13, 1901, she and her landlady, with whom she was boarding, and two gentlemen friends, started in an open hack about 8:35 o'clock, to take a drive; they stopped at the corner of Fifth and Delaware streets in Kansas City and got two bottles of beer, and then drove to the corner of Ninth and Broadway, where they took in another gentleman, and then drove down Broadway and thence along the Southwest boulevard until they reached a point about half way between Twenty-eighth and Twenty-ninth streets where, as the evidence tends to show, there was an excavation dug in the street by a plumber to connect the building of a Mr. Hummer with the watermain in the street. The work was being done for Mr. Cotter, a plumber in the city. The plumber's workmen had been engaged for nearly a week in excavating the trench to make the water connection. Southwest boulevard was paved with asphalt, and this hole was cut across the driveway and was about six feet wide and between seven and eight or ten feet long and about six feet deep. The dirt from this hole was thrown on one side and the rock on the other. The great controversy in the case arose over the question whether this hole or excavation in the street was lighted with lamps or lanterns that night so as to apprise the drivers of vehicles along the boulevard of the presence of this hole. The evidence on the part of the plaintiff was to the effect that there were neither danger signals nor lights or any kind of barricades or ropes to warn the traveling public of the danger.

Mr. C. O. Shepard testified that he was a clerk in the store of Emery, Bird & Thayer, and on the evening of the accident, about 8 o'clock, he passed along Southwest boulevard in a street car, and by this excavation, and noticed the hole as he passed by, and he was sitting next to the window, and the window was open; there were no lights or barricades about the hole when he passed there.

Mrs. Furnkas who was in the carriage with plaintiff when the injury occurred, testified there were no lights or barricades about the hole into which the hack and horses fell. She testified that immediately after the hack fell into the hole, the parties there looked around and there was no sign of lights or barricades; that she was there before the firemen came to take the horses out of the hole.

Mr. Woodcock, witness for the plaintiff, testified that he was in the barber shop about 150 feet from the hole in the ground, on the night of the accident, and some persons came into the shop and called for a light saying there had been an accident there at the hole; that he took one of the bracket lamps off of the wall of the barber shop, and carried it over where the hole was, and there was a horse down in there. He described the hole as about five or six feet wide and ten and a half feet long and about ten feet deep; he supposed the hole had been there for possibly a week before the night of the accident. Asked if there were any lights or barricades there that evening, he said he could not say, he did not notice any, but there were none there when he went over with the light from his shop; "there was not any lights there is the reason they came over for a light at his shop."

Obed Reeve testified that he passed this hole at about 7:30 o'clock or a little later, that night, and there was no light there then.

Don E. Leland who was in the carriage at the time the plaintiff was injured, testified that it was very dark, there was nothing there to show that there was an excavation in the street, no lights, no barricades and no danger signals of any kind.

Harry Crowder, another of the passengers in the hack, testified there was no lamp or light or barricades about the hole, until some one after the accident brought a light from across the street.

The driver, Frank Costello, testified it was a very dark night, and that he did not notice any hole or any lights or barricades to warn him as he was driving along the boulevard, and when he got within a very few feet of it, it looked like water and mud in the street, and the first thing he knew, his team was up on the embankment and fell over in the ditch. He was driving along in what you would call a dog-trot; he saw neither lights nor danger signals about the hole, and there were none there.

On the part of the city, Mrs. Hummer, whose husband had employed Mr Cotter, the plumber, to dig the trench, testified that she saw a lamp lighted and on the place about six o'clock that evening; she lived at 2823 Southwest boulevard; she testified that the lantern used for a...

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