Bailey v. Kansas City

• Decision Date: 15 June 1905
• Citation: 87 S.W. 1182,189 Mo. 503
• Parties: BAILEY v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

87 S.W. 1182

189 Mo. 503

BAILEY v. KANSAS CITY, Appellant

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from Clay Circuit Court. -- Hon. J. W. Alexander, Judge.

Reversed and remanded.

R. J Ingraham and L. E. Durham for appellant.

The court erred in permitting plaintiff, over defendant's objection, to introduce evidence showing that two or three days subsequent to the accident the defendant caused the walk to be torn away and replaced with a new one. Such evidence was extremely prejudicial and damaging to the defendant, in view of the fact that the strongly contested question in this case was as to the defendant's negligence in maintaining the walk. A refusal by the court to give defendant's instruction directing the jury not to consider such evidence in passing upon the question of defendant's negligence was reversible error. Alcorn v. Railroad, 108 Mo 81; Brennan v. St. Lous, 92 Mo. 482; Mahaney v Railroad, 108 Mo. 191; Mitchell v. Plattsburg, 33 Mo.App. 555; Bowles v. Kansas City, 51 Mo. 416; Corcoran v. Peekskill, 108 N.Y. 156; Getty v. Town of Hamlin, 127 N.Y. 636; Railroad v. Hawthorne, 144 U.S. 206; Elias v. City of Lancaster (Pa.), 13 Am. Neg. Rep. 213; Sparf and Hansen v. U.S. 156 U.S. 56; Connor v. Black, 119 Mo. 135.

Hardin & Taylor for respondent.

(1) The court did not commit error in admitting evidence of repairs to the walk subsequent to the injury. Evidence of such repairs is admissible, "for the purpose of showing that the defect was one which the city was bound to repair." It is also admissible "to show an acceptance of the highway as previously dedicated." Brennan v. St. Louis, 92 Mo. 488; Meiners v. St. Louis, 130 Mo. 284; Baldwin v. Springfield, 141 Mo. 212; Mitchell v. Plattsburg, 33 Mo.App. 561; Bowles v. Kansas City, 51 Mo.App. 416; Woods v. Railroad, 51 Mo.App. 503. The fact that defendant admitted in a stipulation that it had sole control over the walk did not render incompetent the evidence of its acts in exercising such control. Nor did such admission bar plaintiff's right to prove the fact so admitted. The evidence was also admissible for the purpose of showing the condition of the walk on the day of the injury. "Evidence of the condition of the sidewalk before or after the accident, within such reasonable time as to justify the inference that it was in such condition at the time of the accident, was admissible." Norton v. Kramer, 79 S.W. 699; O'Neill v. Kansas City, 178 Mo. 91. (2) But defendant is in no position here to complain, as it offered evidence to prove the same fact as to subsequent repairs. And defendant will not be heard here to complain of an alleged error in which it joined. If appellant is correct in its contention that "the evidence of reconstruction was not admissible for any purpose," then it was very reprehensible in appellant to introduce such evidence; and having itself led the court into what it is now pleased to call an error, it will not be heard to squeal on account of the result of its own reprehensible conduct. Lohman v. Stocke, 94 Mo. 677; Reilly v. Railroad, 94 Mo. 611; Christian v. Ins. Co., 143 Mo. 467; Davis v. Brown, 67 Mo. 313; Noble v. Blount, 77 Mo. 235; McGonigle v. Dougherty, 71 Mo. 259; Smith v. Culligan, 74 Mo. 387; Bank v. Armstrong, 92 Mo. 265; Berry v. Railroad, 124 Mo. 282; Bank v. Cushman, 66 Mo.App. 102; Wilson v. Gibson, 63 Mo.App. 656; Herman v. Owen, 42 Mo.App. 388; Herman v. Railroad, 77 Mo.App. 381; State v. Dettmer, 124 Mo. 433; State v. Mounce, 106 Mo. 227. "The defendant waived all right of objection to the evidence by introducing the same character of evidence in its defense." Ruth v. Railroad, 98 Mo.App. 19. (3) But most of the testimony now in question was admitted without any objection by defendant; and the remainder of it was met by only an attempt to object, or what appellant is pleased to call a "general objection," which this court has repeatedly held is no objection at all, when the evidence is admissible for any purpose. Rice v. Waddill, 168 Mo. 99; Lumber Co. v. Rogers, 145 Mo. 445; Stark v. Knapp & Co., 160 Mo. 529; State v. Wright, 134 Mo. 418; Fullerton v. Carpenter, 97 Mo.App. 197; Ruth v. Railroad, 98 Mo.App. 19.

LAMM, J. Mar shall, J., not sitting.

OPINION

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 tenth 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, 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 tenth 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 her 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 taxbills for sidewalk repairs; section 843 provides for the inspection of sidewalks; and section 844 provides for the method of issuing taxbills 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 tenth 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 introduction of said stipulation, respondent was allowed to show from the city engineer's records, that, on January 13, 1898, three days after the accident, notice was sent by the city to an abutting property-owner...