Asher v. City of Independence
| Citation | 163 S.W. 574,177 Mo.App. 1 |
| Parties | GEORGE W. ASHER, Administrator of HENRY ASHER, Deceased, Respondent, v. CITY OF INDEPENDENCE and ALEXANDER G. SUTHERLAND, JR., Defendants; CITY OF INDEPENDENCE, Appellant |
| Decision Date | 05 January 1914 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
Allen Southern for appellant.
(1) The petition failed to state a cause of action against this defendant and the objection to this introduction of testimony should have been sustained. It shows on its face that the proximate cause of the injury complained of was not the act of this defendant. It failed to allege that the city had a reasonable time after notice and prior to the injury to remedy the conditions. Barnes v. St. Joe, 151 Mo.App. 528; Ballard v. Kansas City, 126 Mo.App 543; Cummings v. Ice Co., 150 Mo. 27, 28; Glenn v. Railroad, 150 S.W. 195. (2) Under the allegations of the petition the failure of defendant, if any, to construct its line properly should not be regarded as direct cause of the injuries, and plaintiff's right to recover must rest on other negligence of defendant. Brubaker v. Light Co., 130 Mo.App. 449. (3) It is not negligence not to take precautionary measures to prevent an injury, which, if taken, would have prevented it, when the injuries could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened. Nephler v Woodward, 200 Mo. 179; Brewing Ass'n v Talbot, 141 Mo. 683, 200 Mo. 179; Stanley v. Union Depot Co., 114 Mo. 624; Brubaker v. Light Co., 130 Mo.App. 439; Foley v. McMahon, 144 Mo.App. 444.
J. D. Shewalter and Olney Burrus for respondent, Asher, Administrator.
McCune, Harding, Brown & Murphy for respondent Sutherland.
Plaintiff, a minor, sued by next friend to recover damages for personal injuries he alleged were caused by negligence of defendants, the city of Independence, Carrie M. Lowe and Alexander Sutherland, Jr. During the trial he dismissed Carrie M. Lowe from the action and at the conclusion of the evidence the court gave a peremptory instruction asked by Sutherland and refused to give a like instruction asked by the city. The jury returned a verdict for plaintiff against the city and for the defendant Sutherland. The city appealed. Young Asher attained his majority in 1912, but after the appeal was taken he became civilly dead and the action was continued by the administrator of his estate.
The injury occurred January 25, 1910. Asher climbed to the top of a fire escape on a hotel in Independence, managed by his father, to get what proved to be a hammer a workman had left on the roof in a position where its handle could be seen from below and was observed by Asher from his bedroom window. A metal rung of the ladder was only an inch or two from the metallic roof gutter and when he started to descend, in some way, he touched the rung and the gutter simultaneously with the fingers of his left hand. A wire belonging to the electric light plant owned and operated by the city was in contact with the metallic ladder and in bridging the space between the rung and the gutter the fingers of Asher's left hand made a short circuit for the current carried by the wire. The result was a severe burn that subsequently necessitated the amputation of three fingers. Asher testified:
A boy introduced as a witness by plaintiff testified that coming from school he stopped to watch young Asher go up the fire escape and that when Asher seized the rung of the ladder nearest the gutter he saw a flash of fire, heard Asher scream for help, and then saw him scramble down to the third floor window through which he disappeared into the hotel.
Sutherland a contractor, built the fire escape under contract with Mrs. Lowe, the owner of the hotel, who was moved to have it built by a notice she received from a State hotel inspector. Some three or four days before the injury Sutherland had completed the work, which consumed three or four days, and had turned the structure over to Mrs. Lowe who accepted and paid for it. The escape was built at the rear end of the building and when completed, either touched, or came within eight or ten inches of touching, the electric light wire we have mentioned. Some of the evidence is to the effect that the wire was in contact with the escape at that time, while other evidence tends to show that there was a clear space of eight or ten inches between the wire and the structure and that the contact was caused by the subsequent leaning towards the building of one of the poles on which the wire was carried. The pole line was in the alley at the rear of the hotel and there is evidence tending to show that the poles were so far apart as to permit the wind to sway the wire against the fire escape. Counsel for the city says in his brief: "The facts are shown further to be that the fire escape was constructed through the agency of Mrs. Lowe, the owner of the building, George W. Asher, the proprietor of the...
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