Beebe v. Kansas City, Missouri

• Decision Date: 04 March 1929
• Docket Number: No. 16532.,16532.
• Citation: 17 S.W.2d 608
• Parties: CARL A. BEEBE, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

17 S.W.2d 608

CARL A. BEEBE, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT.

No. 16532.

Kansas City Court of Appeals. Missouri.

March 4, 1929.

Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Walter H. Maloney and Cowgill & Popham for respondent.

John T. Barker, Robert J. Ingraham and Wm. H. Allen for appellant.

BARNETT, C.

This is a suit brought by a father for damages to him resulting from personal injuries received by his minor son. The petition alleged that defendant, Kansas City, Missouri, a municipal corporation, negligently permitted a cavity or hole to exist and remain in the surface of Troost avenue, a public thoroughfare in said city; that by reason thereof the street at that point was not safe for ordinary use, and that defendant knew or by the exercise of reasonable care could have known of the existence of said hole or cavity in time to have repaired the same and thereby have prevented the injury to plaintiff's son and the resulting loss to plaintiff; that defendant negligently failed to provide or maintain a street light in the vicinity, and as a result, the son, Russell Theodore Beebe, was unable to see the hole or cavity in the street. It was alleged that plaintiff's son was riding upon a bicycle in the night-time, and that by reason of the hole or cavity in the street, he was caused to fall and suffer injury, which was the direct result of the negligence of defendant; that plaintiff had been put to expenses for physicians, nurses, and hospital fees, and that he had been deprived of the earnings of his son for a long period of time. The answer was a general denial and a plea of contributory negligence, including the allegation that the son was unlawfully employed at a gainful occupation for a period of more than two hours after the hour of seven o'clock P.M., September 6, 1926, in this: he was working at twelve o'clock P.M., September 6, 1926, in violation of the Laws of Missouri 1923, prohibiting employment in certain occupations for a period of more than two hours after seven o'clock in the evening. The reply was a general denial.

The evidence shows that there was a hole in Troost avenue, a public thoroughfare in Kansas City, Missouri, about ten or twelve inches deep; and that there were other holes and cracks in the pavement in that vicinity. A witness for plaintiff testified that this condition had existed from six months to a year. The pavement between the street car tracks was smooth and in good condition. Plaintiff's son was employed at a pharmacy at Fifty-First street and Troost avenue. He worked from six o'clock in the evening on the day that he was injured until a few minutes after twelve o'clock that night. He then started home on his bicycle. There was no light upon his bicycle and the street light nearest the hole was not burning. There was dim light from the street light at Forty-Ninth street, but not sufficient for plaintiff's son to see the hole. The front wheel of his bicycle went into the hole and threw him over the bicycle and caused a severe injury to his knee. The plaintiff's son testified that he did not know the hole was in the street; but upon cross-examination he admitted that he had traveled over the street two or three times in an automobile and that he knew the street was rough. He also testified that that part of the pavement between the street car tracks was smooth, but he did not state whether he got this information before or after he was injured.

The son had been working at the drug store for a period of eight days when he was injured, for which he had received about eight dollars. He had worked at odd jobs before for which he had received some money. The plaintiff objected to this evidence upon the ground that it had no bearing upon the issues of the case and because under the law the father was entitled to the son's earnings during his minority, but the objections were overruled by the court. The son testified that the money he earned he used himself, and the father testified that he had never received any of the earnings of his son. The evidence showed that the son was fifteen years of age, lived in his father's home; that when he was injured his father contracted for the physicians and nurses' services and contracted the hospital bills; that after the son was able to leave the hospital he was taken back to the father's home, where he was further cared for by the boy's stepmother. On cross-examination defendant's attorney asked the stepmother if she was making a claim for any nursing. She stated that she did not claim anything at all; she was Ted's mother and that she took care of him as a mother. The cause was submitted to the jury upon the theory that defendant had negligently failed to exercise reasonable care to keep the street in a reasonably safe condition but not upon the theory that the city had negligently failed to sufficiently light the street. There was a verdict for plaintiff and defendant has appealed.

Appellant contends that a demurrer to the evidence should have been sustained, not upon the ground that defendant was free from negligence, but upon the ground that the son was guilty of contributory negligence as a matter of law, and that the father was guilty of contributory negligence as a matter of law because he permitted his son to engage in an occupation contrary to the mandates of a statute. It is first claimed that it was contributory negligence as a matter of law for the son to ride upon the street at night without a light upon his bicycle. In Bethel v. City of St. Joseph, 184 Mo. App. 388, 171 S.W. 42, it was held that a municipal corporation is bound to exercise ordinary care to keep its streets in a reasonably safe condition for travel in any general and usual mode, which includes the use of bicycles. In that case this court stated that the hole in the pavement could not be seen and there were no lights to disclose or call attention to the defect. Counsel for appellant concede that the effect of this decision was to hold that it was a question for the jury whether a municipality was liable for injury received by a cyclist riding upon a public street at night without a headlight, but state that the case was decided in 1914 when the modes of travel were different from the present day modes. We have judicial knowledge that travel by automobile has greatly increased since 1914, but we do not know that there has been any change which lowers the standard which a municipality must observe in exercising care to keep the highways reasonably safe for travel, nor that any general custom has grown up to put lights upon bicycles when they are used at night. He who rides a bicycle is charged with knowledge that he may meet another vehicle upon the road, and he must exercise ordinary care to avoid collision. But he has a right to assume that the municipality has exercised ordinary care to keep its streets reasonably safe for travel in the general and usual mode.

Appellant relies upon the case of Cook v Fogarty, 39 L.R.A. 488. In that case the Supreme Court of Iowa held that a person who rides a bicycle without a light or other signal of warning upon a public thoroughfare, when he was likely to meet moving vehicles or pedestrians at a time when objects cannot be discerned at a distance of but a few feet, is guilty of negligence. Although this case is not at variance with anything we have said, yet we are not holding that a cyclist could never recover damages if the rode at night without a light, and was injured by another vehicle. That question is not before us.

Appellant also relies upon the following language found in 27 L.R.A. 300:

"It is certainly open to serious doubt whether a cyclist is justified in expecting that he will be provided with a roadway so smooth that he can safely travel over it without a lamp, and in darkness so profound that a defect does not become visible until it is too late for him to take measures for his protection. Even the generality of such a practice in any given locality ought scarcely, it would seem, to negative the inference that, even if the want of a lamp was not contributory negligence upon the part of the cyclist, he must be at least charged with the consequences of an election to take all the risks which he may incur from the want of a light."

This is the mere opinion of the editor. No cases are cited in support of such a doctrine. We reject the reasoning as unsound. Assumption of risk is an expressed or implied term in a contract of employment. The whole case must turn either upon the exercise of due care by the city or contributory negligence upon the part of plaintiff. If the object or defect which causes a cyclist to fall is of such trivial nature as not to indicate that...