Barr v. Kansas City
| Decision Date | 25 May 1891 |
| Citation | 16 S.W. 483,105 Mo. 550 |
| Parties | Barr et al. v. The City of Kansas, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.
Reversed and remanded.
R. L Yeager for appellant.
(1) The court erred in giving and refusing instructions. (2) The damages assessed are excessive. There were no circumstances shown indicating wantonness, recklessness or conscious negligence that could be made the basis for aggravated exemplary or punitive damages. Parsons v. Railroad, 94 Mo. 286; see, also, Stephens v. Railroad, 96 Mo. 207.
Warner Dean & Hagerman for respondents.
(1) The court did not err in giving plaintiff's first instruction. Russell v. Columbia, 74 Mo. 480; Yokum v. Trenton, 20 Mo.App. 489; Bonnie v. Richmond, 75 Mo. 437; City v. Small, 86 Ind. 469; Jennings v. Van Scharck, 108 N.Y. 530. (2) The court did not err in refusing to give defendant's instructions, numbered 2, 3, 8. (3) The damages were not excessive. The cases cited by appellant have no bearing on the case at bar.
Action for personal injuries, in which plaintiff recovered a judgment in the Jackson circuit court against the City of Kansas for $ 10,000, from which defendant appeals.
The material averments of the petition are as follows: That, on the third day of July, 1887, and long prior thereto, Campbell street, between Sixth and Eighth streets, in said city, had been open for travel and generally used by the public as a street; that, under said Campbell street, at a point about opposite to where the alley between Seventh and Eighth streets intersects said Campbell street, there was a sewer previously built, and then, and for a long time prior thereto, maintained by said defendant.
That, at a point on said Campbell street over said sewer, and near the intersection of said alley and said Campbell street, and on the west side of said Campbell street, the said defendant, in constructing said sewer, left an opening for access to said sewer, and the defendant had provided a covering or grating for said opening, which was designed and intended, if it had been suitably constructed, and of suitable dimensions and sufficiently fastened, to cover said opening, so as to permit travel of all kinds over the same, as upon any other part of said street.
The defendant, in providing said covering to said opening in said sewer, negligently failed to provide a covering of sufficient dimensions, and the cover which the said defendant provided was about one and one-fourth inches too short, and about three-fourths of an inch too narrow, to properly fill said opening. The defendant provided bearings for said cover to rest on on each side of said opening, but negligently and carelessly failed to provide bearings at the ends of said opening.
That, by reason of the negligence of the defendant in providing an insufficient covering for said opening, and insufficient bearings on which the same should rest, the cover provided by defendant fell down and into said sewer, and left the said sewer open. That the open place so left in said sewer was about three feet and one inch in length and one foot and four inches in width; that, after the said cover fell into said sewer, the said sewer was, through the negligence and carelessness of defendant, left open on July 30, 1887, and for many days next preceding that day, and after the defendant knew, or, by the exercise of ordinary care, might have known, that the same was open, dangerous and unsafe, and liable to cause injury to those passing along and over said street.
That defendant carelessly and negligently left said opening unguarded, and negligently failed to give any signal or warning to those passing along or over said street of the opening in said sewer, and of the danger from said open sewer; that, on or about the thirtieth day of July, 1887, plaintiff, Carrie A. Barr, was passing along said Campbell street, and, while in the exercise of ordinary care upon her part, stepped into said opening and fell into said sewer, and was greatly wounded, bruised and injured; the petition then sets out particularly the injuries she received, alleges damage by reason thereof in the sum of $ 20,000, for which plaintiffs ask judgment.
The answer was a general denial and a plea of contributory negligence.
It was shown by the plaintiff, by evidence which was uncontradicted, that the construction of the covering of the man-hole, into which plaintiff fell, and its support was defective as charged in the petition, and that, by reason thereof, a hack passing over it about seven o'clock on Sunday evening, July 24, caused the covering to be displaced, and fall to the bottom of the hole; that the hole, which was about seven feet deep, remained uncovered, with the cover lying at the bottom thereof, from that time until the morning of the thirtieth of July, when plaintiff fell into it.
Campbell street is a public traveled street, running north and south, with sidewalks on each side; this hole was in that street, about two feet from the west sidewalk, in plain view, and within the line of an alley, that crossed it running east and west. Mrs. Barr lived in the house next to the house on the southwest corner of said street and alley, both houses fronting on the street.
It appears from the evidence, that between six and seven o'clock, on the morning of the thirtieth of July, Mrs. Barr, for the purpose of employing the service of a negro woman, who lived on the alley east of Campbell street, went out of the rear of her house into the yard, thence into the alley, thence east on the alley to the street, crossed the street, and, having gone to the woman's house in the alley and transacted the business she had with her, was returning hastily across the street to her home, when she fell into the hole, and received the serious injuries of which she complains.
In crossing Campbell street the first time Mrs. Barr must have passed within a few feet of the open hole, and there is some evidence tending to prove that, upon another occasion, she was near enough to have seen the hole open. She testifies, however, positively that she never knew of the hole until she fell in it. There was evidence, also, tending to show that she was running across the street when she fell, and that just before, and at the time she fell, she was looking south towards Eighth street, her attention being attracted in that direction by seeing a person whom she supposed to be her servant girl.
The assignments of error urged here for reversal of the judgment are that the court erred in giving instructions 1 and 2, on behalf of the plaintiff, and in refusing to give instructions, numbered 2, 3 and 8, on behalf of the defendant.
I. Instruction, numbered 1, for plaintiff, is as follows:
The only objection urged to this instruction is to the clause within brackets. The criticism upon this clause is that "in this instruction the attention of the jury is directed exclusively to the question whether the city, by the exercise of ordinary care, might have discovered the defect; the further question, whether it would have had sufficient time thereafter to repair the defect, is left entirely out of consideration." This is hardly a fair criticism of this clause of the instruction, when read in connection with its context, since negligence is therein predicated, not alone upon notice, actual or constructive, but upon the additional fact to be found that the defendant, after such notice until plaintiff fell into it, suffered the hole to remain uncovered; the power to remedy the defect before the accident is necessarily implied from the terms used, as a condition of negligence. But, if the instruction was not as explicit as it might have been in this particular, the court, at the instance of the defendant, made it as explicit as the defendant desired it to be, by giving the following instruction, the only one asked by it on the subject. ...
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