Atchison v. The City of St. Joseph
| Decision Date | 16 November 1908 |
| Citation | 113 S.W. 679,133 Mo.App. 563 |
| Parties | NANNIE ATCHISON, Respondent, v. THE CITY OF ST. JOSEPH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
Reversed and remanded. (with directions).
W. B Norris and O. E. Shultz for appellant.
(1) The court's refusal to give instruction V, for plaintiff, was not error and did not entitle plaintiff to a new trial for the reasons, (a) that the part in italics assumes that the girder was an obstruction; (b), that there was no evidence to call for such an instruction, as plaintiff knew of the location of the girder of which she complains; (c), that it was not such error as would be prejudicial to plaintiff. (2) The court's refusal to give instruction VI, for plaintiff, was not error and did not entitle the plaintiff to a new trial for the reasons, (a), that plaintiff's instruction A, including everything asked for in instruction VI; (b), that the portion in italics is not justified by the pleading, as they declare a total absence of light; (c), that it was not such error as would be prejudicial to plaintiff. (3) The court committed error in refusing to sustain defendant's demurrer to the evidence. Seibert v Railroad, 188 Mo. 657.
John S Boyer for respondent.
(1) Plaintiff was entitled to instruction V, and the trial court was right in granting plaintiff a new trial on the ground that said instruction was refused. Perrette v. Kansas City, 162 Mo. 250; Cassaday v. Kansas City, 119 Mo.App. 118; Holloway v. Kansas City, 184 Mo. 30. (2) Plaintiff was entitled to instruction VI, and the trial court was right in granting plaintiff a new trial on the ground that said instruction was refused. Davenport v. Hannibal, 108 Mo. 478; Russell v. Columbia, 74 Mo. 480. (3) The reasons assigned by the trial court for granting plaintiff a new trial are sufficient. However it is the law that although the court assigned a wrong ground for granting a new trial this court will uphold the action of the trial court if it can find support on any other ground recited in the motion. Morelock v. Railroad, 112 Mo.App. 644; Davenport v. Hamilton, 108 Mo. 477, 478; Russell v. Columbia, 74 Mo. 480; Milling Co. v. Transit Co., 122 Mo. 269; Millar v. Car Co., 130 Mo. 523; Baughman v. Fulton, 139 Mo. 559; Hoepper v. Hotel Co., 142 Mo. 390.
Plaintiff was injured by being thrown from a buggy while driving over a viaduct maintained by the defendant city along and as a part of one of its streets. She brought this action for damages. The verdict was for the defendant. The trial court granted plaintiff a new trial and defendant appealed from that order.
The reason assigned by the court for ordering a new trial was that it considered it had committed error in refusing instructions numbered 5 and 6, offered by the plaintiff. We think those instructions were properly refused.
The evidence shows the viaduct consisted of a roadway of ample width and that on either side there was a sidewalk space of about six feet. Those sidewalk spaces were protected on the outside by a railing extending from down along the street before the viaduct was reached, and were separated from the roadway on the viaduct by a part of the structural iron work or large girder rising out of the floorway of the bridge or viaduct a height of more than two feet. This extended the full length of the bridge and at either end, on each side, stood perpendicular. It is thus seen that one driving a vehicle along the street approaching the viaduct must avoid this structure so dividing the sidewalk or footbridge as it is called in the record.
Plaintiff with a companion, who was driving, were in a buggy passing along the street approaching the viaduct, in the nighttime. They drove the buggy so as to collide with the end of the girder and balustrade...
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