Bayne v. Kansas City

• Decision Date: 16 June 1924
• Docket Number: No. 15088.,15088.
• Citation: 263 S.W. 450
• Parties: BAYNE v. KANSAS CITY.
• Court: Missouri Court of Appeals

263 S.W. 450

BAYNE v. KANSAS CITY.

No. 15088.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by Joseph D. Bayne against Kansas City. From a judgment setting aside verdict for plaintiff and granting new trial, plaintiff appeals. Affirmed.

Jacobs & Henderson, of Kansas City, for appellant.

John B. Pew and Ilus M. Lee, both of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff's action seeks to recover for an injury resulting from a fall caused by stepping on the lid of a manhole over a catch-basin in the sidewalk, which he said tilted and slipped, letting his foot down into cavity, whereby hew was thrown to the ground and his leg was broken.

The case is here for the second time on appeal. On its first appearance, the defendant appealed from a judgment for $2,000 in plaintiff's favor, with the result that the judgment was reversed and the cause remanded for new trial because of an error in one of plaintiff's instructions. See Bayne v. Kansas City, 253 S. W. 116. At the second trial plaintiff obtained a verdict for $1,000, but, on a hearing of defendant's motion for new trial the court sustained the same and set the verdict aside. Consequently this time it is the plaintiff who appeals.

Prior to the second trial, plaintiff filed an amended petition in which it was alleged that Kansas City, as a part of its system of sewerage, maintained a manhole in the sidewalk at the much-traveled northwest corner of Seventeenth street and Grand avenue, which manhole was covered by an iron lid; that while walking at said corner plaintiff stepped upon said lid and—

"by reason of the lid and covering becoming worn, loose, and ill-fitting, and dirt and débris gathering thereunder, said manhole cover would teeter and totter and wobble, and when plaintiff stepped thereon it tipped or tilted and moved under his tread, and plaintiff was thrown or caused to fall, and was seriously injured."

It was further alleged in said amended petition that defendant's negligence—

"consisted in this, to wit, that the manhole cover and as hereinbefore set out was located at one of the most busy thoroughfares in Kansas City, Mo.; that they carelessly and negligently allowed and permitted said manhole or the lid thereof to become loose and ill-fitting; that they allowed an accumulation of dirt to gather thereunder, causing the manhole cover to become loose and ill-fitting, and causing it to become unsafe and dangerous to pedestrians walking thereon, and as a result of that condition the said cover or lid would teeter and totter or shake up and down and become loose and ill-fitting, and that condition remained at said place for a sufficient length of time that the defendant, by the exercise of care and caution could or should have discovered said condition and remedied the dangerous condition and thereby averted the injury to this plaintiff, but carelessly and negligently failed to do so, and as a direct result thereof plaintiff was thrown down and injured."

At the close of plaintiff's case, and again at the close of the entire case, defendant demurred to the evidence, but each time was overruled. The court, in sustaining defendant's motion for new trial, declared that it did so "upon the distinct grounds that the verdict of the jury is without evidence to support the same and in conflict therewith. Carvin v. St. Louis et at, 151 Mo. 334."

Just what the court meant by the reasons assigned is perhaps somewhat of a perplexing question. Evidently the judge assigned more than one reason, for he says the motion* is sustained "upon the distinct grounds that" and then specifies them by saying that "the verdict is without evidence to support the same" and is "in conflict "herewith." The citation he gave of Garvin v. St. Louis, 151 Mo. 334, 52 S. W. 210, manifestly refers to the first reason, namely, that the evidence in plaintiff's behalf as a matter of law, was insufficient to support a verdict in his favor. If this was the sole reason the court had in mind why did he add the further statement that the verdict was "in conflict" with the evidence? And why did he say he set the verdict aside "upon the distinct grounds," using the plural instead of the singular, and saying they were distinct, which means that they are "evidently not identical; observably or decidedly different"? New Standard Dictionary. The only point decided in the Carvin Case was that the plaintiff's evidence was insufficient to support her verdict, and not that she had no cause of action—i. e., that the verdict conflicted with the evidence, else the judgment would likely have been reversed outright, instead of being merely reversed and the cause remanded. The court's citation of this case, therefore, was solely in support of the first ground or reason assigned. The words of the trial judge herein, assigning the insufficiency of plaintiff's evidence, were complete in themselves and needed nothing further to elucidate or strengthen that reason, and if the words added thereafter do not specify another ground, then they are wholly unnecessary and meaningless. They add nothing to the first ground; and, although a verdict ought not to be in plaintiff's favor if the evidence in support thereof is insufficient for that purpose, yet such a verdict may not be said to conflict therewith. Insufficiency of evidence and conflict of evidence are two different things. There is a vast difference between a plaintiff's evidence being merely insufficient to authorize a verdict in his favor, and a situation where the evidence affirmatively shows that he is not entitled to recover. In the first situation, the verdict is without the necessary evidential support; in the second his verdict conflicts with the evidence.

It seems to us that this is what the trial court had in mind when, after saying that plaintiff's verdict was without sufficient evidentiary support, he added that the verdict "conflicts" with the evidence. If this is what the court meant, then his reasons or grounds for setting the verdict aside may be paraphrased thus:

"The verdict should be set aside because plaintiff's evidence is legally insufficient to support it, and because the verdict is in conflict with the evidence, the true facts, in the case."

This construction of the grounds given by the court is applicable to the evidence in the case. The evidence offered in plaintiff's behalf, looked at from his standpoint, did not show he had no cause of action. The most that can be claimed against it (if anything), is that it did not go far enough, while defendant's evidence is to the effect that there was no negligence on the part of the city, and consequently no right of recovery whatever in plaintiff. If defendant's evidence is true, then the verdict in plaintiff's favor is "in conflict therewith." The trial judge, being the thirteenth juror, has the right to pass once on the weight of the evidence and grant one new trial. Consequently, is not what the judge said herein tantamount to saying that plaintiff's evidence is not legally sufficient to sustain a verdict in his favor, and that the verdict he received "is in conflict" with, i. e., is against the weight of the evidence.

A description, in minute detail, of the manhole and cover, its location, and the occurrence of the injury are set forth in Judge Arnold's opinion on the former appeal. It is not necessary to again set forth those matters here.

As to the first ground assigned by the trial court for setting the verdict aside, namely, that the evidence was insufficient to sustain the verdict, the plaintiff seems to rely upon the theory that the question of his right to go to the jury having been decided) in his favor on the first appeal, it is now res adjudicata on the second. Not necessarily so. It may be considered as settled if the pleadings are the same and the evidence on the second trial is as full and complete as before, and the appellate court is still satisfied with the sufficiency thereof. As said by the Supreme Court in Davidson v. St. Louis, etc., It. Co., 256 S. W. 168, loc. cit. 170:

"Much space in the brief is devoted to the question as to the extent our former opinion in this case will bind the court in this hearing. We shall not review the many cases cited. It suffices to say that such opinion is the law of the case, unless the pleadings have been amended so as to introduce new issues, or the evidence on the retrial is substantially different, from the evidence considered upon the vital questions at the former hearing here. It should be further stated, however, that, even if there is no substantial difference in pleadings and proof upon the retrial, yet if this court upon second appeal finds that it was in error upon the first hearing, it not only has the power and right to correct such error, but it would be the duty of the court so to do, in the interest of justice. This is true whether we erred in the principles of law declared, or erred in the determination of what were the real facts of the case....