Burton v. Kansas City

• Decision Date: 06 July 1914
• Docket Number: No. 11158.,11158.
• Citation: 168 S.W. 889,181 Mo. App. 427
• Parties: BURTON v. KANSAS CITY.
• Court: Missouri Court of Appeals

168 S.W. 889

181 Mo. A. 427

BURTON v. KANSAS CITY.

No. 11158.

Kansas City Court of Appeals. Missouri.

July 6, 1914.

1. MUNICIPAL CORPORATIONS (§ 806)—INJURIES TO PERSONS ON STREET.

A traveler on a city street has the right to presume that the street is safe, unless he has knowledge to the contrary or could have discovered it by the exercise of ordinary care.

2. MUNICIPAL CORPORATIONS (§ 821)—INJURIES TO PERSONS ON STREETS—CONTRIBUTORY NEGLIGENCE.

That the city maintained an arc light 80 or 90 feet distant from a defect in the street into which the vehicle driven by plaintiff's husband fell, throwing him off and causing his death, will not justify the court in declaring as a matter of law that the city was free from negligence and plaintiff's husband guilty of contributory negligence, where the accident occurred after the fall of darkness and there were no warning lights or

barriers at the defect, but the questions are for the jury.

3. EVIDENCE (§ 568)—TRIAL (§ 139)—JURY QUESTIONS—WEIGHT OF TESTIMONY.

The weight of opinion testimony is for the jury, and the mere fact that one of plaintiff's witnesses gave an opinion adverse to her case will not preclude a recovery.

4. MUNICIPAL CORPORATIONS (§ 799)—INJURIES TO PERSONS ON STREETS—NOTICE.

Where a city authorizes a contractor to do something to the street which will render it unsafe and require warning lights, no notice of the failure of the contractor to place lights need be proved, since the primary duty is upon the city to keep its streets reasonably safe.

5. APPEAL AND ERROR (§ 1050)—REVIEW—HARMLESS ERROR.

In an action for the death of plaintiff's husband, killed when he drove into a defect in the street, where there was no evidence showing that the defect was protected by lights or barriers, the admission of evidence that it had been unprotected for several months was harmless, if erroneous.

6. MUNICIPAL CORPORATIONS (§ 818)—INJURIES TO PERSONS ON STREETS—EVIDENCE—ADMISSIBILITY.

In an action for the death of plaintiff's husband, who drove into an unguarded defect on a street, evidence concerning the unfinished condition of the street at other places along the block, and that at no point it was guarded, is admissible as bearing on the question whether travel was confined to only a single side of the street and as to whether deceased had knowledge of the street's generally defective condition.

7. APPEAL AND ERROR (§ 1052)—REVIEW—HARMLESS ERROR.

The admission of answers by witnesses as to the condition of the street in places other than at the point of the accident is harmless, where subsequent questions confined the witnesses to the block wherein the accident occurred.

8. TRIAL (§ 192) — INSTRUCTIONS — ASSUMPTION OF FACT.

It is not reversible error for an instruction to assume an uncontroverted fact.

9. TRIAL (§ 129)—ARGUMENT OF COUNSEL.

In an action for the death of a traveler, killed by reason of a defect in a public street, the surety company upon the bond of the contractor repairing the street engaged counsel to assist the city attorney. One of the counsel for the city told the jury that they had no interest in fixing up testimony in the case and that they were disinterested public servants of the city. Held, that argument by plaintiff's counsel, in reply thereto, that it was hard to tell the degree of interest men have in the defense or the prosecution of lawsuits, and that there was nothing to show whether the counsel representing the city were private hired attorneys or were public counsel of the city, was not reversible error; it having been invited by the defendant.

10. DEATH (§ 86)—WRONGFUL DEATH—ELEMENTS OF DAMAGES.

In an action by a wife for the wrongful death of her husband, one of her elements of damage is the burden of educating their minor children alone and without assistance.

11. TRIAL (§ 125)—ARGUMENT OF COUNSEL.

In an action for the wrongful death of plaintiff's husband, argument by her counsel urging the jury to assess large damages because plaintiff was left to rear their minor children alone was not prejudicial; that being one of the elements of damage.

Appeal from Circuit Court, Jackson County; Kim. Stone, Judge.

Action by Mary B. Burton against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

A. F. Evans, Frank Hagerman, E. E. Ball, and Clyde Taylor, all of Kansas City, for appellant. A. F. Drake and T. J. Madden, both of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff sued for damages sustained in the death of her husband which she alleges was caused by the negligence of the city in failing to guard or light an unsafe place in the street into which the wheel of the wagon deceased was driving dropped, throwing him out and killing him. The answer was a general denial with a plea of contributory negligence growing out of the alleged lack of ordinary care on the part of the deceased, and in his driving on the left-hand side of the street in violation of a city ordinance regulating travel. From a verdict for plaintiff, defendant appeals.

Defendant's main contention is that plaintiff is not entitled to recover.

Wyoming street runs north and south. Nineteenth street runs east and west and crosses Wyoming at right angles. Both of these streets are traversed by street car lines, and there is also heavy stockyards traffic thereon. For several months before the date in question, Wyoming street, north of the intersection, was being repaved by a contractor under contract with the city. On the day of the deceased's hurt and prior thereto, that part of Wyoming street occupied by the street car tracks and the portion east of said tracks had been repaved with brick, and traffic both north and south went over that part of the street. The part of the street west of the tracks had been torn up for several weeks and possibly months. The concrete base was probably in, but the bed for the brick was not, leaving the surface rough, full of depressions, and from 6 to 12 inches lower than the surface of the street where the brick were in. As the paving had been completed up to the west street car rail, this left an offset at the west side of said rail of from 6 to 12 inches. Whether this torn-up or rather unfinished condition of the west side of the street extended down to the intersection with Nineteenth street is not quite clear from the record. One would infer from expressions of some of the witnesses that it did not extend quite to the intersection, though this is comparatively unimportant. At any rate, north of the intersection and west of the west street car rail, the street was unfit for travel and was lower than the surface of the rail which corresponded to the surface of the finished portion of the street. This unfinished, lower condition extended from the west rail to the curbing on the west side of the street.

About a quarter to 6 o'clock in the evening of November 30, 1912, deceased, sitting on the right in the driver's seat, drove his wagon east on Nineteenth to the intersection and then turned north on Wyoming. His seat was fully eight feet above the ground. At that hour traffic on the street was somewhat congested. On the portion of Wyoming street east of the street car tracks (which was the right-hand side of the street to deceased) there was standing a buggy and also a large barrel wagon. Deceased, to get by these, drove to his left upon the east street car track; but a street car coming from behind and close to him on that track began sounding the gong for him to get out of its way. He therefore went still further to his left and drove upon the west car track to avoid the wagon and buggy and to let the street car pass. When he did so, the left front wheel of his wagon dropped into the unfinished and lower portion of the street immediately west of the west rail, throwing him headlong to the ground and fracturing his skull, from which he died shortly after. The injury occurred some 80 feet, or possibly more, north of the above-mentioned intersection. At that time of the year darkness fell about 4:30 or 5 o'clock, and on this evening it was gloomy, and, if not actually raining at the time, was threatening rain. It was shown to be raining soon after. An electric arc light was suspended over the two streets a little to the south and east of the center of the intersection. The evidence, however, is amply sufficient to show or to warrant the finding that it was not burning on this evening.

The case is bottomed on the alleged negligence of the city in not placing warning lights or barriers over the unfinished portion of the street so as to notify travelers of the danger and that that part of the street was withdrawn from public use.

There is no dispute over the fact mat the street was unfinished and that the depression existed west of the west rail as above detailed. The evidence was clear that the left front wheel of the wagon dropped into the depression and that deceased was thereby thrown from the wagon and killed. Neither is there conflicting evidence as to the absence of barriers and guard lights. Witnesses for both plaintiff and defendant testified there were none, and others said they did not see any. No one claimed that there were any. Neither can it be claimed that there is evidence carrying an inference that warning lights were there. In fact, the issue at the trial was, not whether there were warning lights or barriers in place at the time of the accident, but whether their presence was rendered unnecessary by the arc light at the intersection. The city took the position that the arc light was sufficient to brilliantly light the situation so that it was negligence to drive onto the unfinished side of the street. We have carefully read the record, and there is no conflict in the evidence as to the absence of barricades and warning lights.

The contention of the city is that under the evidence and the physical facts in the case there was no evidence from which the jury could...