Boyd v. Kansas City
| Decision Date | 09 February 1922 |
| Parties | IRENE BOYD v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Harris Robinson, Judge.
Affirmed.
E. M Harber and Francis M. Haywood for appellant.
(1) The court erred in refusing the instruction in the nature of a demurrer to the evidence asked by defendant, Kansas City, at the conclusion of plaintiff's evidence, because plaintiff did not give the statutory notice as to the time of the accident required by the statute. Laws 1913, p. 545; Reid v. Kansas City, 195 Mo.App. 457; Hackenyos v. St Louis, 203 S.W. 986; Reese v. St. Louis, 216 S.W. 315. (2) The court erred in overruling the peremptory instruction in the nature of a demurrer to the evidence asked by the defendant, Kansas City, at the conclusion of all the evidence in the case, because, in addition to the foregoing ground: (a) The viaduct in question did not constitute either a nuisance or an obstruction to travel. Atchison v. St Joseph, 133 Mo.App. 563; Seibert v. Railroad, 188 Mo. 657; Wolff v. Dist. of Columbia, 196 U.S. 152; Giles v. Ternes, 93 Kan. 491; Kaiser v. St. Louis, 185 Mo. 374; Solomon v. Duncan, 194 Mo.App. 517; Am. Brew. Assn. v. Talbott, 141 Mo. 683; Gaines v. New York, 215 N.Y. 533, 109 N.E. 594. (b) Because the evidence showed that the automobile in which plaintiff was riding was going at a rate of speed in excess of that permitted by ordinance, and in the middle of the street which was also forbidden by ordinance which plaintiff knew but permitted without protest. Williams v. St. Joseph, 166 Mo.App. 299; Marsh v. Ry. Co., 104 Mo.App. 577; Leapard v. K. C. Rys. Co., 214 S.W. 268. (3) The court erred in giving the peremptory instruction asked by defendant. Terminal Railway Company at the conclusion of all the evidence in the case without giving that asked but defendant Kansas City, for the same reason that a principal cannot be held because of the act of an agent where the agent is held blameless. McGinnis v. Ry. Co., 200 Mo. 347; Delaplain v. Kansas City, 109 Mo.App. 113; Clifford v. Dam, 81 N.Y. 52. (4) The court erred in refusing an instruction asked by defendant Kansas City. Atchison v. St. Joseph, 133 Mo.App. 563; Seibert v. Railroad, 188 Mo. 657. (5) The court erred in refusing to admit proper evidence offered by defendant city. Offoty v. Miss. Trust Co., 196 S.W. 428; Hilburn v. Ins. Co., 140 Mo.App. 355; Dudley v. Wabash, 167 Mo.App. 647; Hopkins v. Modern Woodmen, 94 Mo.App. 402. (6) The court erred in admitting improper evidence offered by plaintiff over the objections and exceptions of defendant city. Reese v. St. Louis, 216 S.W. 315. (7) The court erred in giving instruction "A" asked by plaintiff over the objections and exceptions of Kansas City. Winslow v. Ry. Co., 192 S.W. 121; State ex rel. Long v. Ellison, 272 Mo. 571; Pyburn v. Kansas City, 166 Mo.App. 150. (8) The court erred in permitting an excessive verdict for plaintiff to stand. Stolze v. Transit Co., 188 Mo. 581.
New, Miller, Camack & Winger, P. E. Reeder, Frank P. Barker and R. D. Groves for respondent.
(1) The notice served on the mayor on March 4, 1918, was sufficient, because the language in said notice, taken as a whole, constitutes a substantial compliance with the statute. Laws 1913, p. 545; Hunt v. St. Louis, 211 S.W. 673; Morrill v. Kansas City, 179 S.W. 762; Reid v. Kansas City, 192 S.W. 1049; City of East Chicago v. Gilbert, 59 Ind.App. 613; Heffner v. Heffner, 48 La. Ann. 1088; Brenner v. Chicago, 182 Ill.App. 348. (2) The institution of the suit itself by filing original petition on the 8th day of March, 1918, summons having been served on the mayor on March 12, 1918, all within ninety days of the occurence of the accident in question, was a sufficient and substantial compliance with the statute. Hunt v. St. Louis, 211 S.W. 673; Morrill v. Kansas City, 179 S.W. 759; Laws 1915, p. 220; Smith v. Mosley, 234 Mo. 486; Capitain v. Trust Co., 117 S.W. 628. (3) Since the suit was brought within ninety days from the occurrence of the accident complained of, no notice was necessary because the statute was not intended to apply to suits brought within the time required for notice. Morrill v. Kansas City, 179 S.W. 759. (4) Respondent was not obliged to serve any notice under the statute in this case because the condition of the bridge in question at the time of the injury was nuisance maintained by the city as distinguished from a defect. 28 Cyc. 450; Hughes v. City of Fond du Lac, 73 Wis. 380; Elrod v. Town of Franklin, 204 S.W. 298; McCarty v. Mountain View, 188 S.W. 595; Updike v. Omaha, 30 L. R. A. (N. S.) 589. (5) The court rightfully refused to sustain appellant's demurrer to the evidence because there is ample testimony in the record showing that at the time of the injury the girder in the middle of said bridge or viaduct was a dangerous obstruction therein and a nuisance, and because there is also ample evidence in the record showing that respondent was not guilty of contributory negligence. (a) The girder in the center of the viaduct was a dangerous obstruction and a nuisance. K. C. Ordinance 9701, sec. 2 (a); Ordinance 2336, sec. 6, par. (d); Benton v. St. Louis, 217 Mo. 687; Birkhimer v. Sedalia, 200 S.W. 298; Burns v. St. Joseph, 91 Mo.App. 489; Loewer v. Sedalia, 77 Mo. 431; Davenport v. Hannibal, 108 Mo. 471; Gallagher v. Tipton, 133 Mo.App. 557; Ordinance 28759, sec. 25; Columbia Taxicab Co. v. Strop, 215 S.W. 748; Corcoran v. New York, 188 N.Y. 131; DeCourey v. Const. Co., 140 Mo.App. 169. (b) The automobile was being driven in the proper part of the street and was not exceeding the speed limit. Ordinance 28759, sec. 9; Berry on Automobiles, par. 173; Loewer v. Sedalia, 77 Mo. 446; Montague v. Ry. Co., 193 S.W. 935; Statter v. Railroad, 200 Mo. 107; Munger v. Sedalia, 66 Mo.App. 629; Baxter v. Transit Co., 103 Mo.App. 597; Becke v. Mo. Pac. Ry. Co., 102 Mo. 544; Ferry v. City of Waukegon, 205 Ill.App. 109; Rappaport v. Roberts, 203 S.W. 676; Lawler v. Montgomery, 217 S.W. 856. (6) Appellant's point 3 is not tenable, because of action to be against the railway company as the servant or agent of the city, and that the defendant city was not an active participant or wrongdoer in the negligence complained of. McGinnis v. Ry. Co., 200 Mo. 347; Burnes v. St. Joseph, 91 Mo.App. 489. (7) The action of the court in refusing the city's instruction complained of in appellant's point 4 was eminently proper, and appellant was not prejudiced by such action of the court. Hunt v. St. Louis, 211 S.W. 673. (8) The court did not commit error in sustaining the objection to the question asked witness Williams, and the defendant was not prejudiced thereby, because: (a) The witness was not qualified to testify as to the rate of speed of an automobile. Priebe v. Crandall, 187 S.W. 605. (b) The witness's answer went to the jury and the testimony was merely cumulative. Smoot v. Dennison, 196 S.W. 1018. (9) Instruction "A" complained of by the appellant correctly stated the law applicable to the case and covered all the necessary facts for the jury to find and the trial court committed no error in giving it. Benton v. St. Louis, 217 Mo. 687; Birkhimer v. Sedalia, 200 S.W. 298; Burnes v. St. Joseph, 91 Mo.App. 489; Loewer v. Sedalia, 77 Mo. 431; Davenport v. Hannibal, 108 Mo. 471; Gallagher v. Tipton, 133 Mo.App. 557; Kain v. Railway, 29 Mo.App. 53; Hartpence v. Rogers, 143 Mo. 633. (10) It is not within the province of the trial court to set aside the verdict unless it is so obviously disproportionate to the injuries received as to show the jury were actuated by passion and prejudice. 16 Am. & Eng. Ann. Cases, 9; Gratiot v. Mo. Pac. Ry. Co., 116 Mo. 450; Phillips v. Railroad Co., 170 Mo.App. 416; Parker v. Met. St. Ry. Co., 140 Mo.App. 703; Partello v. Mo. Pac. Ry. Co., 217 Mo. 645; Waechter v. Ry. Co., 113 Mo.App. 270. (11) The evidence shows the verdict was not excessive and in view of the testimony the verdict of the jury must stand. Bamber v. Rys. Co., 192 S.W. 953; Parker v. St. Ry. Co., 140 Mo.App. 703; Chapman v. Rys. Co., 217 S.W. 623, Ann. Cases, 1913 A, 1363; Duffy v. Rys. Co., 217 S.W. 883.
James T. Blair, C. J., concurs in the result.
OPINIONIn Banc.
-- This is a suit for personal injuries. The plaintiff had judgment against Kansas City, and the majority of the learned Judges of the Kansas City Court of Appeals, to which the appeal was taken by the city, reversed, without remanding the case, on the ground that plaintiff had not given the city notice of the time and place of the accident as required by the statute in such cases, in that, said notice stated the time of the accident was between the hours of eight p. m. and nine p. m. "on or about January 25, 1918," whereas it should have stated the date unqualifiedly and with absolute certainty as being "on January 25, 1918," which was the date the injury occurred. One of the learned judges of said court, however, the Honorable Ewing C. Bland, dissented from the opinion of said court on the ground that it was in conflict with the decision of this court, Division No. 2, in the case of Costello v. Kansas City, 219 S.W. 386, and requested that the case be certified to this court, which was done.
The petition was against the city of Kansas City and the Kansas City Terminal Railway Company, but a demurrer to the evidence was sustained in favor of said Terminal Company, and the trial proceeded against the city, with the result there was a verdict and judgment against it alone.
The petition alleged after the formal allegations of the corporate character of the defendants, that defendant railway company, some time prior to January 25, 1918, had built a bridge or viaduct on...
To continue reading
Request your trial