Benjamin v. Metropolitan Street Railway Co.

• Citation: 34 S.W. 590,133 Mo. 274
• Parties: Benjamin et al. v. Metropolitan Street Railway Company, Appellant
• Decision Date: 10 March 1896
• Court: Missouri Supreme Court

34 S.W. 590

133 Mo. 274

Benjamin et al. v. Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri, First Division

March 10, 1896

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

James Black and Pratt, Ferry & Hagerman for appellant.

(1) There was error in overruling the motion to quash the panel of jurors drawn under the act of April 1, 1891. Said act is unconstitutional in that it violates section 53, article 4 of the constitution. State v. Kring, 74 Mo. 612; State ex rel. v. Miller, 100 Mo. 439; State ex rel. Richards v. Hammer, 42 N. J. L. 436. (2) The negligence, if any, and the cause of the injury was the act of Seymore, for which the coal company and not this defendant is liable because, under the facts, Seymore was not the servant of defendant. Bennett v. Truebody, 66 Cal 509; Clapp v. Kemp, 122 Mass. 481; McCullough v Sherman, 105 Pa. St. 169; Fuller v. Bank, 15 F. 875; Sweeney v. Murphy, 32 La. Ann. 628; Stevens v. Armstrong, 6 N.Y. 435; Schermerhorn v. Gas Co., 5 Daly, 144; Larow v. Clute, 14 N.Y.S. 616; Sawyer v. Martins, 25 Ill.App. 521; DeForest v. Wright, 2 Mich. 368; Kellogg v. Payne, 21 Iowa 575; Linton v. Smith, 8 Gray, 147; Wood v. Cobb, 13 Allen, 58; King v. Railroad, 66 N.Y. 181. (3) More than this, the coal company was an independent contractor, which excuses and relieves the defendant. Bennett v. Truebody, 66 Cal. 509; McKinley v. Railroad, 40 Mo.App. 449; Barry v. St. Louis, 17 Mo. 121; Clark v. Railroad, 36 Mo. 202; Blumb v. City of Kansas, 84 Mo. 112. (4) The true test of defendant's liability, if any, under the facts in this case, was negligence in failing to discover that Seymore left the coal cover out of place. Lampert v. Gas Co., 14 Mo.App. 376; Kirkpatrick v. Knapp & Co., 28 Mo.App. 428; Grogan v. Foundry Co., 87 Mo. 321; Bennett v. Truebody, 66 Cal. 509; Clapp v. Kemp, 122 Mass. 481; Daniel v. Potter, 4 Car. & P. 262; Harrison v. Collins, 86 Pa. St. 153; Doherty v. Waltham, 4 Gray, 596; Fisher v. Thirkell, 21 Mich. 1; Clark v. Fry, 8 Ohio 358; Cooley on Torts [1 Ed.], 626, 627. (5) Since the time the coal cover was displaced before the accident could not have exceeded fifteen minutes, there could in law have been no negligence in failing to discover such displacement; the time was too short. Lampert v. Gas Co., 14 Mo.App. 376; Harrison v. Collins, 86 Pa. St. 153; Klapp v. Milwaukee, 53 Wis. 196; White v. Gloversville, 12 Hun, 302; Sheel v. Appleton, 49 Wis. 125; Blakely v. Fry, 18 Hun, 157; Muller v. Newburgh, 32 Hun, 24; Sikes v. Manchester, 59 Iowa 36. (6) The deposition of Frank Seymore was erroneously excluded. R. S. 1889, sec. 4461; Frink v. Potter, 17 Ill. 406; Bradley v. Geiselman, 17 Ill. 572. (7) Whether a certain portion of the walk was safe or dangerous was not for the witnesses to say, even though they were experts. Griffin v. Willow, 43 Wis. 509; Koons v. Railroad, 65 Mo. 597; Eubank v. Edina, 88 Mo. 655; Gutridge v. Railroad, 94 Mo. 472; King v. Railroad, 98 Mo. 240; Naughton v. Stagg, 4 Mo.App. 271; Reid v. Ins. Co., 58 Mo. 521; Bills v. Ottumwa, 35 Iowa 109; Hambleton v. Railroad, 36 Iowa 31; Hughes v. Muscatine County, 44 Iowa 672; McDonald v. State, 27 N.E. 358; Ivory v. Deer Park, 22 N.E. (N. Y.) 1080; Bailey v. Railroad, 8 N.Y.S. 780; Bohr v. Neuneschorander, 22 N.E. 416; DeBerry v. Railroad, 6 S.E. (N. C.) 723; Yeaw v. Williams, 15 R. I. 20; Kold v. Sandwich Enterprise Co., 36 Ill.App. 419; Lincoln v. Barry, 5 Cush. 590; Ryerson v. Abingdon, 102 Mass. 526; Kelley v. Fond du Lac, 31 Wis. 179; Montgomery v. Scott, 34 Wis. 338. (8) Whether an appliance is carefully or carelessly constructed can not be submitted to the witnesses. Buxton v. Somerset Potters' Works, 121 Mass. 446; Mellor v. Utica, 48 Wis. 457; Grippen v. Town of Wilson, 43 Wis. 509; Hopkins v. Railroad, 78 Ill. 32; Railroad v. Ryals, 11 S.E. 499.

Scarritt, Griffith & Jones for respondents.

(1) Appellant's motion to quash the panel of jurors drawn under the act of April 1, 1891, was properly overruled. The act is not in violation of either section 53, article 4, or section 28, article 2, of the state constitution. Dunne v. Cable R'y Co., 32 S.W. 641; Coombs Com. Co. v. Block, 32 S.W. 1139; State v. Welsor, 117 Mo. 570. (2) The jury found as a fact under proper instructions of the court that the defendant's negligence was the cause of the plaintiff's injuries, and it requires no citation of authorities to show that appellate courts will not weigh the evidence in a case of this kind, if there is evidence to support the finding of the jury. (3) The fact that the careless act of an irresponsible driver of a coal wagon may have concurred in causing plaintiff's injury does not relieve the defendant from responsibility for its negligence. The concurrent negligence of a third person (even though such a fact has been proved and in this case it has not) would constitute no defense to this suit. Nagel v. Railroad, 75 Mo. 661; Yocum v Trenton, 20 Mo.App. 489; Becke v. Railroad, 102 Mo. 544; Boggs v. Railroad, 18 Mo.App. 275; Union, etc., Co. v. Schacklet, 10 N.E. 899; Kuttner v. Railroad, 29 Mo.App. 502; Little v. Hackett, 116 U.S. 366; Dickson v. Railroad, 104 Mo. 500; Kincaid v. Railroad, 62 Mo.App. 365; Waller v. Railroad, 59 Mo.App. 410; Musick v. Dold Packing Co., 58 Mo.App. 322; Haney v. City of Kansas, 94 Mo. 334. (4) The negligence charged, as has before been stated, was defective construction; hence, notice to or knowledge on the part of defendant of the defective coal hole is not essential to recovery. Barr v. Kansas City, 105 Mo. 550; Frank v. St. Louis, 110 Mo. 522; Hall v. Railroad, 74 Mo. 298; Keitel v. Cable R'y Co., 28 Mo.App. 657; Dickson v. Hollister, 16 A. 484. (5) It was not error to exclude the depositions of Frank Seymore, he being present in the court room while the trial was going on. R. S. 1889, sec. 4461; Schmitz v. Railroad, 119 Mo. 271; Schmitz v. Railroad, 46 Mo.App. 391; Carter v. Prior, 8 Mo.App. 577; affirmed by supreme court in 78 Mo. 222; Chapman v. Kerr, 80 Mo. 162; Kitchen v. Railroad, 59 Mo. 514. (6) "The subject concerning which the witness is to testify as an expert is one which must be determined solely by the court." Rogers on Expert Testimony [2 Ed.], 27; Thompson v. Ish, 99 Mo. 160; Benjamin v. Railroad, 50 Mo.App. 608; Dillard v. State, 58 Miss. 368; Perkins v. Stickney, 132 Mass. 218.

OPINION

Macfarlane, J.

Plaintiff obtained judgment in the circuit court for $ 2,000 against defendant, as damages for injuries received by reason of falling into a scuttle hole maintained by it in the public sidewalk adjacent to its property in Kansas City. An appeal was taken to the Kansas City court of appeals by which the cause was transferred to this court for the reason that the constitutionality of the Kansas City jury law was involved.

Defendant operated a street railroad in Kansas City, and maintained its power house on the corner of Twelfth and Charlotte streets. The basement of the building was used for storing coal used in its business. An excavation extended out under the sidewalk of Charlotte street, and coal was unloaded into the basement by means of four scuttle holes in the sidewalk, from which chutes carried it into the basement. Defendant had provided and used iron casting to cover these holes when not open for the purpose of storing coal.

On the seventh day of February, 1890, plaintiff Mrs. Benjamin, while walking along the sidewalk upon said street, stepped on the cover of one of these scuttle holes, which turned and slipped out of place, by reason of which her foot and leg went into the hole, she was thrown down and received severe injuries to her foot, leg, and arm.

The petition charged negligence in permitting the scuttle hole "to remain at the time herein complained of in an unsafe, insecure, open, unfastened, defective," condition. That "the scuttle and cover therefor were not of the latest, best, and most approved pattern or design for the safety of pedestrians passing over the same, but which scuttle was about two feet in diameter, and the cover thereof rested on an arm or shoulder of only about one half inch in width, the bottom surface of which cover extended only about one half an inch below the top surface of the sidewalk, and which said cover was not secured in place or fastened down in any way; through which said scuttle the said defendant caused to be carelessly and negligently poured or dumped great quantities of soft or bituminous coal, which said scuttle and cover plaintiffs state was constructed by the defendant for the purpose for which it was then being used, not of the latest, best, and most approved pattern or design, but in a careless and negligent manner, and was by said defendant carelessly and negligently suffered to be and remain at said time in an unsafe, open, unfastened, insecure, and dangerous condition; and that said defendant carelessly and negligently permitted the shoulder or rim on which the cover to said scuttle rested to become covered and filled up to the level of the sidewalk with dust and dirt and fragments of coal at the time herein complained of, so that the same was then, and for a long time prior thereto had been, in an unsafe, insecure, and dangerous condition."

Defendant by answer denied generally the allegations of the petition and pleaded specially contributory negligence.

The evidence showed that the Keith & Perry Coal Company had a contract with defendant to furnish all the coal necessary to its business. That the coal was hauled in wagons by the employees of the contractors to the power house and unloaded through these scuttle holes by them. Defendant gave no directions to the contractor in respect to the manner of unloading the coal and retained no control over them or...