Ballentine v. Kansas City
| Decision Date | 24 June 1907 |
| Citation | 103 S.W. 564,126 Mo.App. 130 |
| Parties | J. N. BALLENTINE, Appellant, v. KANSAS CITY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
C. W Chase and P.J. Byrd for appellant.
(1) Court erred in giving peremptory instruction asked by defendant, and in taking the case from the jury. Moore v Transit Co., 194 Mo. l. c. 9; Patton v. Bragg, 113 Mo. l. c. 601; Bender v. Railroad, 137 Mo. 240. (2) Was the horse hitched? The evidence shows that he was and in a reasonably safe and prudent manner.
E. C Meservey, City Counselor, and W. H. H. Piatt, Associate City Counselor, for respondent.
(1) The action of the court in giving the instruction asked by the defendant at the close of plaintiff's evidence was proper. The evidence affirmatively showed that accident resulted from the carelessness of plaintiff and his servants without any concurring negligence on part of defendant. Brown v. Glasgow, 57 Mo. 156; Titus v Northbridge, 97 Mass. 258; City of Hannibal v. Campbell, 86 F. 297; Schoenlan v. Friese, 14 Mo.App. 436; Ruppenthal v. St. Louis, 190 Mo. 213; Ely v. St. Louis, 181 Mo. 723; Downend v. Kansas City, 156 Mo. 60. (2) The burden was upon plaintiff to show First, negligence of the defendant as a proximate cause of the accident. Second, that the accident occurred in a public highway, under such conditions as to make the defendant liable. Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596; Brown v. Glasgow, 57 Mo. 156; Hannibal v. Campbell, 86 F. 297; Titus v. Northbridge, 97 Mass. 258.
This is a suit for damages against the city for an alleged failure to maintain one of its alleys in a reasonably safe condition for the use of the public, by reason of which the plaintiff's property was injured. At the time of the injury complained of and for a long time prior thereto, the building known as Tullis Court stood upon the north side of Eighth street, between Penn street and what was known as Jefferson street before it was vacated. A driveway or alley extends from Eighth street north on the east side of Tullis Court to the north side of said block, and then extends east and west on the north side, and then south on the west side of said court to Eighth street; which was used by tradesmen delivering goods to the families living in said Court. On the north side of this alley that runs east and west on the north side of the Court, there is a steep declivity of fifty feet. This alley had been established by an ordinance of the city.
The plaintiff was engaged in the grocery business and at the time of the alleged injury his driver of a wagon drawn by one horse was in said alley delivering groceries to a family living in the northeast corner of said Court. When he stopped his wagon he hitched his horse to a thirty-pound weight and set the brakes of his wagon, with the lines around the beam. There was another person with the driver. They left the horse hitched as stated, went into the house to deliver the goods and when they came out they saw only the head of the horse as he was disappearing over the declivity. The alley in question was about ten feet wide and the declivity was unguarded by rails or otherwise. In the fall the horse was killed, and the wagon and groceries that were in it were damaged. The place where the animal was hitched was about the length of the wagon from the declivity in question. The horse was shown to have been an animal of good habits and not accustomed to moving away when hitched to the weight in question. The court at the close of plaintiff's evidence directed the jury to return a verdict for the defendant, whereupon plaintiff took a nonsuit with leave to move to set the same aside. In due time he moved to set aside the non-suit, which motion the court overruled and rendered final judgment against him, from which he appealed.
The plaintiff takes the position, that, as his driver exercised proper care in hitching the horse, and, as the city was negligent in not guarding the place in question by a sufficient barrier, the absence of which was the cause of the loss of his horse and goods and the damage to his wagon, he made out a case for the jury. The weight to which the horse was...
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