Bethel v. City of St. Joseph

• Decision Date: 23 November 1914
• Citation: 171 S.W. 42,184 Mo.App. 388
• Parties: J. EARL BETHEL, an Infant, by next friend, JAMES G. BETHEL, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

171 S.W. 42

184 Mo.App. 388

J. EARL BETHEL, an Infant, by next friend, JAMES G. BETHEL, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

November 23, 1914

Appeal from Buchanan Circuit Court.--Hon. C. H. Mayer, Judge.

Judgment reversed and cause remanded.

Frank B. Fulkerson, L. E. Thompson and Herman Hess for appellant.

(1) Plaintiff's instruction number 4 should have been refused, because including an instruction as to the law regarding future injuries when the evidence does not show that there is any reasonable certainty of any such injuries. Wilkerson v. Met. St. Ry. Co., 126 Mo.App. 617; Ballard v. Kansas City, 110 Mo.App. 396; Klass v. Street Railway, 169 Mo.App. 617; Allen v. Lumber Co., 171 Mo.App. 492. (2) The instruction does not limit future pain and mental anguish to that shown by the evidence. Albin v. Railroad, 103 Mo.App. 308; Wilkerson v Met. St. Ry. Co., 126 Mo.App. 613. (3) The refusal of defendant's instruction "A" was error. McQuellan on Munic. Corp., sec. 2759; 2 Dillon Munic. Corp. (4 Ed.), sec. 1019; 1 Shearman & Redfield on Negligence (5 Ed.), sec. 367.

Duvall & Boyd for respondent.

(1) Plaintiff's instruction number 3 correctly declared the law and was properly given by the trial court. Molway v City of Chicago, 239 Ill. 486, 88 N.E. 485, 23 L.R.A (N. S.) 543; Powers v. City of Boston, 154 Mass. 60, 27 N.E. 995; City of Americus v. Johnson, 2 Ga. A. 378, 58 S.E. 518. (2) A municipal corporation does not fulfill its duty to the public in making its highways safe for the use of horse drawn vehicles, if they are not safe for travel, including their use by bicyclists. Molway v. City of Chicago, 239 Ill. 486, 86 N.E. 485, 23 L.R.A. (N. S.) 543; Powers v. City of Boston, 154 Mass. 60, 27 N.E. 995. (3) Defendant's instruction "A" was properly refused. Defendant had no right to ask the court to make a comparison between the different kinds of vehicles, the duty being imposed upon defendant city by law to use ordinary care to keep its streets in a reasonably safe condition for travel by any more which the public has a right to use. Molway v. City of Chicago, 239 Ill. 486, 88 N.E. 485, 23 L.R.A. (N. S.) 543; Powers v. City of Boston, 154 Mass. 60, 27 N.E. 995.

OPINION

TRIMBLE, J.

--Plaintiff, a boy about sixteen years of age, was engaged in carrying parcels from a store to its various customers throughout the city of St. Joseph. He did this on a bicycle.

On the 29th day of October, 1913, between six and seven in the evening he was going east on Felix street when his wheel ran into a defect in the street throwing him to the ground and injuring him. By his next friend he brought this suit to recover damages.

It is first contended that the city's demurrer to the evidence should have been sustained and the case taken from the jury. But this is clearly without merit. It was not dark, though dusk had fallen, so that while plaintiff could see to go, yet the hole in the pavement could not be seen and there was no lights to disclose or call attention to the defect. The boy did not know of the defect in the street and was not shown to have been going in a careless manner or at a reckless speed. The defect in the street consisted of a sunken place about three feet across and from four to six inches in depth (One witness testified to four and three-eighths inches by actual measurement). Defendant's witnesses say it was a mere depression and of much less depth. It had been allowed to remain in that condition for at least five years prior to the injury. The defect was shown to have caused the fall and injury. Hence, there was undoubtedly a case for the jury.

Plaintiff's instruction number 4 is objected to because, in giving the measure of damages, it authorized the jury to take into consideration pain and anguish likely to be suffered in the future, if any. But this objection is also without merit. The instruction is in an approved form and the petition not only pleaded future pain and suffering, but there was sufficient evidence from which the jury could find that such suffering would reasonably follow. The injury was to the head, and the testimony was that such injuries are slow of recovery and that at the time of the trial the plaintiff's head still hurt him and other unfavorable conditions resulting from the fall were still present.

Plaintiff's instruction number 3 which submitted the issuable facts upon which recovery depended, in submitting the question whether the defect rendered the street dangerous or not, did so in these words "if you further believe and find from the evidence that said hole or indentation in the pavement rendered said Felix street and said Twenty-first street at said point dangerous and not reasonably safe for persons travelling in or on vehicles or on bicycles upon, along or over said streets, etc." This told the jury that plaintiff could recover if the street was not reasonably safe either for ordinary vehicles or for bicycles. The city contended that this authorized the jury to find for plaintiff if they found that the street was dangerous to a bicycle although they might believe that it was otherwise reasonably safe for travel in general. In other words, the city says that the jury might well infer from that instruction that the city must not only exercise ordinary care to see that its streets were reasonably safe for general traffic but must also keep them reasonably free from such dangers as are peculiar to and liable to affect bicycles only. To prevent the jury from entertaining this idea, the city asked its instruction lettered A to the effect that "the city owes no greater duty to those riding bicycles upon its streets than it does to persons who may be passing along and over the same in another kind of vehicle" and that if the street was "in such state of repair as to make it reasonably safe for those passing along and over the same in vehicles usually used by persons travelling thereon while they themselves were using ordinary care in so doing, then the verdict should be for the defendant city." This instruction A was refused and its refusal is excepted to as error.

The point raised involves the principles to be observed in submitting to a jury the question whether a cyclist, under a given set of circumstances, can or cannot hold the city liable for a defect in the street. Must the city be required to keep its streets in any smoother or better condition for bicycle travel than for other modes? A small crack in the pavement, a sharp stone, a tack, a bit of glass, a piece of coal or an insignificant slant in the street might be highly dangerous to a bicycle rider, but would not affect other modes of travel. It will not do to require the city to keep its streets in the smooth condition of a driving or racing track for bicycles. On the other hand it may perhaps be too strict a rule to enunciate the principle that a cyclist, under all circumstances, must take the road as he finds it and thus become the insurer of his own safety. A bicycle is a vehicle and as such is entitled to use the street. [North Chicago, etc. R. Co. v. Cossar, 203 Ill. 608, 68 N.E. 88; Holland v. Bartch, 120 Ind. 46, 22 N.E. 83; Lee v. City of Port Huron, 128 Mich. 533, 87 N.W. 637; Thompson v. Dodge, 58 Minn. 555, 60 N.W. 545; Taylor v. Union Traction Co., 184 Pa. 465, 40 A. 159.] Being entitled to use the street, does the fact that it is a fragile machine of unstable equilibrium increase or lessen the obligation of the city with regard to its streets, or does that obligation remain the same as in other modes of travel? We think the obligation remains the same. The object to be secured in requiring the city to care for its...