Bleil v. Kansas City

• Citation: 70 S.W.2d 913
• Decision Date: 19 April 1934
• Docket Number: No. 31580.,31580.
• Parties: BLEIL v. KANSAS CITY.
• Court: United States State Supreme Court of Missouri

70 S.W.2d 913

BLEIL v. KANSAS CITY.

No. 31580.

Supreme Court of Missouri, Division No. 1.

April 19, 1934.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Action by A. W. Bleil against Kansas City. From an order granting plaintiff a new trial after jury returned verdict for defendant, defendant appeals.

Reversed and remanded, with directions.

George Kingsley, City Counselor, and John J. Cosgrove, Asst. City Counselor, both of Kansas City, for appellant Kansas City.

Mont T. Prewitt and Madden, Freeman & Madden, all of Kansas City, for respondent.

STURGIS, Commissioner.

Plaintiff brought this suit against Kansas City to recover damages for personal injuries received by him caused by his falling on an alleged defective and dangerous sidewalk of that city. The plaintiff alleged negligence of the defendant in permitting the sidewalk where he fell and was injured to be and remain in a defective condition, dangerous to persons traveling thereon, and that in attempting to pass over such walk at night in the course of his work as a physician plaintiff stepped into a large hole or depression in one of defendant's public sidewalks, causing him to fall and receive severe injuries. The answer is a general denial, coupled with a plea of contributory negligence, in that plaintiff "failed to use his eyes and senses" in discovering and avoiding the alleged defective hole or depression in the walk. The case was tried and submitted to a jury, which returned a verdict for the defendant. The trial court then granted plaintiff a new trial on the specified ground that it had given erroneous instructions to the jury for the defendant. The defendant by its evidence conceded that at the place of the accident the concrete sidewalk in question was broken and "crumbled," but denied that there was any "hole" in same or that the defect rendered the sidewalk dangerous to travelers thereon or presented a condition which defendant should have anticipated might cause injury. The accident happened in the winter when the streets and sidewalks were covered with a coating of ice and snow (no negligence of defendant being claimed in that respect), and the point mostly contested at the trial was whether plaintiff's fall and injury was caused by his slipping and falling as a mere accident because of the ice and snow or because of the negligent defect in the sidewalk. The question whether the defective condition of the sidewalk rendered the same dangerous and not reasonably safe to pedestrians traveling thereon or was of such slight and trivial character that danger to persons using the sidewalk could and would not reasonably be expected or anticipated was submitted to the jury by appropriate instructions. While the trial court did not specify the particular erroneous instruction, the giving of which constituted error necessitating the granting of the new trial, both parties concede in their briefs and argument here that the error, if any, is in the burden of proof instruction given for defendant, as follows:

"E. The court instructs the jury that the burden of proof is upon plaintiff to prove his case by a preponderance, that is, the greater weight of the credible evidence. If you believe that plaintiff has not met this burden or that the evidence is evenly balanced or preponderates in favor of defendant Kansas City, then your verdict must be for the defendant Kansas City."

Plaintiff's contention is, and such was the view of the trial court in granting the new trial, that, inasmuch as the jury was called on to decide both the question of defendant's negligence and plaintiff's contributory negligence as a defense, this instruction had the effect of placing on plaintiff the burden of disproving his own negligence as well as proving defendant's negligence. If so, the instruction was clearly wrong, as the burden of proof as to plaintiff's contributory negligence is on defendant. Each party had alleged the negligence of the other, and, without more, the burden of proof as to each was on the one alleging it. Authorities are not necessary to be cited for this proposition.

An examination of the instructions given to the jury, however, discloses that plaintiff's instruction covering the whole case and authorizing a verdict for him not only predicated his right to recover on a finding of the facts constituting defendant's negligence, but also on a finding "that plaintiff at the time and place in question was in the exercise of ordinary care for his own safety." The defendant had asked and was given this instruction on contributory negligence: "G. The jury are instructed that persons walking on a sidewalk are charged with the duty to exercise ordinary care to observe and avoid defects. Therefore, if you find and believe from the evidence that plaintiff saw, or in the exercise of ordinary care could have seen the defect if there was a defect in said sidewalk, and could thus have avoided stepping into it, but negligently failed so to do, the plaintiff can not recover, and your verdict must be for the defendant."

The plaintiff asked no instruction on the burden of proof, though clearly entitled to one placing such burden on defendant as to his contributory negligence. The defendant was also given the instruction E mentioned placing on plaintiff the burden of proving "his case" by a preponderance of the evidence. The plaintiff's position is that the court's instruction E placing the burden of proof on plaintiff to prove "his case" by the greater weight of the evidence, without instructing that the burden of proof was on defendant to prove contributory negligence, both being at issue, amounted to and would be understood by the jury as requiring plaintiff to disprove his own contributory negligence. Defendant contends that instruction E could not reasonably have been so understood by the jury, as plaintiff's contributory negligence could not be part of "his case" which plaintiff was required to prove by the greater weight of the evidence; and further that, if plaintiff thought the instruction was misleading in this respect, he should have requested an instruction telling the jury that, as to the alleged contributory negligence on plaintiff's part, the burden of proof was on the defendant.

We think defendant is correct. This is the common sense of the matter. The jury had listened throughout the trial to the contention on plaintiff's part that defendant city had been negligent in allowing this sidewalk to remain with a dangerous hole or depression in the surface thereof such as was likely to cause injury to persons walking thereon, and to the contention on defendant's part that there was no dangerous hole or depression at the place mentioned, and, if there was, plaintiff was negligent himself in not using "his eyes and senses" in looking where he was stepping. This last feature of the case seems not to have been stressed at the trial. It would seem hardly possible that, after having listened to the contentions of the parties and the evidence supporting each, when the court told the jury that "the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence," the jury would understand that this meant that plaintiff must disprove the defense in the same way. Surely an intelligent jury would understand that plaintiff's case did not include defendant's defense. If there was anything in the instructions which might confuse the jury in this...