Applebee v. Ross

• Decision Date: 08 April 1932
• Docket Number: No. 30059.,30059.
• Citation: 48 S.W.2d 900
• Parties: APPLEBEE v. ROSS et al.
• Court: Missouri Supreme Court

48 S.W.2d 900

APPLEBEE v. ROSS et al.

No. 30059.

Supreme Court of Missouri, Division No. 2.

April 8, 1932.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

Action by Delia Applebee against W. A. Ross, doing business as the N. A. Krammer Construction Company, and others. From a judgment for plaintiff against named defendant and in favor of other defendants, W. A. Ross appeals.

Affirmed.

Harris & Koontz, of Kansas City, for appellant.

Madden, Freeman & Madden and Thomas W. McNamara, all of Kansas City, for respondents.

WESTHUES, C.

This is an action, for damages, for personal injuries alleged to have been received by respondent on March 1, 1927, while riding in a motorcar. The car was driven into an excavation on the Paseo, a public boulevard near Meyer boulevard in Kansas City, Mo. W. A. Ross, doing business as the N. A. Krammer Construction Company, the city of Kansas City, Mo., and Martin E. Ismert were made defendants. Plaintiff dismissed as to Kansas City. At the trial of the case the jury returned a verdict for defendant Ismert, and for plaintiff, as against defendant Ross. The amount of the verdict was $10,000. Appellant filed a motion for a new trial, which was overruled by the court. Thereupon appellant perfected an appeal to this court.

The evidence adduced, warrants the finding that defendant Ross, in pursuance of a contract with Kansas City, Mo., to pave the roadway of the Paseo, excavated a part of the roadway, at the point of the accident, to a depth of from twelve to eighteen inches. On the morning in question, the plaintiff was called to do some work at the home of defendant Ismert. Ismert, at his wife's suggestion, drove to plaintiff's home for the purpose of taking her to the Ismert home. While in route to defendant's home, plaintiff was riding in the rear seat of Ismert's car, and Ismert was driving. There is testimony that the car was going from twenty-five to thirty miles per hour and, at that rate of speed, was driven into the excavated area of the roadway, made by defendant Ross. The surface of the ground in this area was very rough, and caused the car to bound and rebound, throwing plaintiff from her seat and injuring her spine. Other facts will be related in the course of the opinion.

We find five assignments of error in appellant's brief, as grounds for a reversal of the judgment in this case. They are substantially as follows: Appellant complains of the action of the trial court in refusing the peremptory instruction, offered by defendant Ross at the close of plaintiff's case and at the close of all the testimony. Appellant complains of the trial court's action in giving plaintiff's instructions Nos. 1 and 2 and in refusing to give appellant's instruction No. T. Appellant also assigns as error the giving of instructions Nos. 12 and 17, offered by his codefendant Ismert.

We will dispose of appellant's complaints in the order given. The first of these is without merit. There was no peremptory instruction or demurrer offered, at the close of plaintiff's case, by either defendant Ross or Ismert. Defendants' counsel has briefed this point at great length. We have examined the record very carefully and do not find any mention of such an instruction or demurrer. The only instruction of this nature in the record was offered at the close of the entire case, and reads as follows: "The court instructs the jury, at the close of all the evidence, that their verdict must be for the defendant, Ross." (Italics ours.) We will consider the instruction as a demurrer to the evidence, at the close of the case. For the purpose of this demurrer we must view the evidence in its most favorable light to respondent. State ex rel. v. Haid, 325 Mo. 107, 28 S. W.(2d) 97, loc. cit. 102 (6-9). Under this rule there was ample evidence to support the verdict. It was shown by the testimony that defendant Ross excavated the roadway under a contract with the city. The work of excavating had been done more than two weeks prior to the incident in question. No warning signs of any description, or barricades, had been placed in the street to warn the traveling public of the dangerous condition caused by the excavation. A light snow had fallen some time during the night, which acted as a blanket and obstructed from view, at least to a great extent, the uneven surface of the excavated area, which extended the entire width of the roadway. Plaintiff was riding in defendant Ismert's car. It was not shown that respondent had any control over the car or authority to direct the driver, Ismert. There was an abrupt drop in excess of fifteen inches from the paved portion of the roadway to the rough excavated area. There was testimony that the abrupt drop and the roughness of the surface caused the car in which plaintiff was riding to lurch and jerk, throwing plaintiff out of the seat and causing the injuries complained of. Under these circumstances, the trial court properly overruled the demurrer to the evidence.

Appellant contends the petition is based on the concurrent negligence of appellant and defendant Ismert, and that the evidence did not show that the negligence of defendant Ross concurred in causing the injury. The petition specifically pleads that defendant Ross was negligent in causing the dangerous condition in the roadway to exist, and knowing of this condition was also negligent in failing to place warning signs or barricades in the roadway for the protection of the public, and that such negligence was a contributing cause to the injury. There was substantial evidence in the record to support these charges of negligence, and the fact that such negligence was the proximate cause of the injury. The case was properly submitted to the jury for their determination as to defendants' liability.

Appellant's complaint of instruction No. 1 is largely based on the theory that there was no evidence in the record of any negligent act of defendant Ross that was the proximate cause of the injury. What we have said on the question of the demurrer to the evidence disposes of this point. Appellant further urges that the instruction is erroneous, because it submitted the case to the jury on the theory of concurrent negligence of appellant and defendant Ismert. Appellant's position is that the evidence conclusively shows that the negligent acts of Ismert in driving his car, in which plaintiff was riding, at a high, negligent, and reckless rate of speed into a rut in the highway, was the sole cause of the injury. The instruction submitted the case to the jury on the theory that if the negligent acts of appellant and Ismert concurred in causing the injury complained of, then both defendants would be liable. The instruction was carefully drawn. It did not assume any facts, but required the jury to find every fact necessary for a recovery before a verdict was authorized for plaintiff. The instruction safeguarded the rights of Ross. There was ample evidence to support the theory that the combined acts of appellant and defendant Ismert concurred in causing the injury to plaintiff. Under the evidence adduced, it was proper for the court to submit the case to the jury on that theory. 45 C. J. 920, § 485; also page 924, § 487; Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 239 S. W. 827; Myers v. Kennedy, 306 Mo. 268, 267 S. W. 810, loc. cit. 814 (5); State ex rel. v. Haid, 325 Mo. 107, 28 S.W.(2d) 97, loc. cit. 102 (2)...