Campbell v. City of Stanberry
| Decision Date | 07 December 1903 |
| Citation | 78 S.W. 292,105 Mo.App. 56 |
| Parties | NELLIE CAMPBELL, Respondent, v. THE CITY OF STANBERRY, Appellant |
| Court | Kansas Court of Appeals |
December 7, 1903;
Appeal from Gentry Circuit Court.--Hon. Gallatin Craig, Judge.
Judgment affirmed.
Aleshire & Benson for appellant.
(1) The court erred in giving plaintiff's instruction No. 1. First, because it is a comment on the evidence; second because it submits to the jury the question of negligence based solely upon the theory that the jury could find negligence on the part of defendant if it failed to protect the street by guard rails and by placing lights along the streets. It was for the jury to determine whether there was negligence on the part of the city in failing to properly protect the ditch. Barr v. City of Kansas, 105 Mo 550; St. L., K. & N.W. v.N. S. Y., 120 Mo. 541; Meyer v Railroad, 40 Mo. 151; Raysdon v. Trumbe, 52 Mo 35. (2) This instruction is subject to the same criticism as was found in instruction No. 1, in the former trial of this case. 85 Mo.App. 159. (3) In a case where the defense is contributory negligence it is held error for the plaintiff to submit a case without a recognition of the plaintiff's contributory negligence. Gilson v. Railway, 76 Mo. 282; Moberly v. Railway, 98 Mo. 183; Cultivator Co. v. Railway, 64 Mo.App. 305; Mallman v. Harris Bros., 65 Mo.App. 127. (4) The court erred in giving plaintiff's second instruction because if plaintiff was aware of the condition of the street and ditch greater care was required of her than in the case where she had no such knowledge. See authorities, supra. (5) The court erred in giving plaintiff's instruction No. 3 and especially that portion of it which authorized the jury to take into consideration the plaintiff's expense for medicine and medical attention. Muth v. Railroad, 87 Mo.App. 422. (6) The court erred in refusing defendant's instruction No. 9. An instruction of this kind has been heretofore more than once approved. Henry v. Railway, 113 Mo. 525; Sawyer v. Railroad, 37 Mo. 362; Feary v. Railroad, 62 S.W. 458. (7) The court erred in refusing defendant's instruction No. 10 for the reason that if plaintiff knew that the ditch in question was open she should have been required under those circumstances to have used ordinary care and prudence as stated in said instruction. Cohn v. City of Kansas, 108 Mo. 387; Flynn v. City of Neosho, 114 Mo. 572; Maus v. Springfield, 101 Mo. 613; Haniford v. Kansas City, 103 Mo. 172; Gerdes v. Iron F. Co., 124 Mo. 347. (8) The court erred in refusing to give defendant's instruction No. 11. A similar instruction to this has been repeatedly approved in criminal cases as well as civil, and has been the law of this State for years. State v. Brooks, 99 Mo. 137. Shirts v. Overjohn, 60 Mo. 308; Wright v. Town of Butler, 64 Mo. 165; Feary v. Street Railway, 62 S.W. 460.
Peery & Lyons, J. L. McCullough and J. C. Wilson for respondent.
(1) The first instruction for the plaintiff is not subject to the objections urged against it. Feary v. Railway, 62 S.W. 458; Barr v. Kansas City, 105 Mo. 555; S. C., 121 Mo. 33; Campbell v. Stanberry, 85 Mo.App. 159; Lane v. Railway, 132 Mo. 4; Milligan v. Railroad, 79 Mo.App. 396; Plummer v. Milan, 79 Mo.App. 393; Chilton v. St. Joseph, 143 Mo. 193; Young v. Webb City, 150 Mo. 333; Hughes v. Railway, 127 Mo. 452; Crecellus v. Bierman, 68 Mo.App. 34; Dowling v. Allen, 102 Mo. 213; Bealey v. Smith, 158 Mo. 515; Brummel v. Harris, 162 Mo. 403. (2) The second instruction for the plaintiff was approved on the former appeal. (See authorities cited at end of last point.) Besides this instruction clearly and accurately stated the low under the decisions in this State. Graney v. St. Louis, 141 Mo. 185; Chilton v. St. Joseph, 143 Mo. 202. (3) Appellant attacks plaintiff's third instruction on the ground that the evidence was not sufficient to entitle plaintiff to recover for medicine, medical attendance, etc. It showed an actual payment of $ 97 and an absolute liability testified to by plaintiff of $ 400 more. What more could be required. Morris v. Railway, 144 Mo. 500; Robertson v. Railway, 152 Mo. 382. (4) It is contended that the court erred in refusing defendant's instruction No. 9. It is settled by a long line of decisions in this State that when the injury, loss or damage complained of is a joint result of the negligence of the city, and unavoidable accident, the defendant is liable for the entire damage or loss, if the plaintiff is guilty of contributory negligence. Vogel v. West Plains, 73 Mo.App. 588; Vogelgesang v. St. Louis, 139 Mo. 127, and cases therein cited. Beauvais v. St. Louis, 169 Mo. 500. The defendant again as upon the former appeal complains of the refusal of its instruction No. 10 which is identical with its No. 11 offered on the former trial. The observations made in the preceding paragraph apply with equal force to this objection. See authorities cited at conclusion of paragraph 2 of this brief. Besides, this instruction was a direct comment on the evidence; a singling out of one fact, which even if true did not preclude a recovery, and telling the jury to take it into consideration in determining a vital issue in the case. That this can not be done is established by cases too numerous to cite. Everything contained in this instruction as to the knowledge of the plaintiff, and the care and prudence required in case of such knowledge, in so far as those matters were proper to be stated to the jury, was fully stated in other instructions both for plaintiff and defendant. In fact defendant's fifth instruction given seems to contain everything embodied in its No. 10. So that in no view of the matter could the refusal of the latter have been error. (6) It is next contended that the court erred in refusing defendant's instruction numbered 11. The authorities upon evidence make a broad distinction between solemn admissions in the course of judicial proceedings and admissions against interest made otherwise. It frequently happens also, that the witness, by unintentionally altering a few of the expressions really used gives an effect to the statement completely at variance with what the party actually did say. 1 Greenleaf, Ev., sec. 200. See also, Holmes v. Leadbetter, 69 S.W. 24; State v. Moxley, 102 Mo. 390; State v. Glahn, 97 Mo. 679; State v. Howell, 117 Mo. 325 and other cases; State v. Wisdom, 119 Mo. 552 and cases cited; State v. Inks, 135 Mo. 689; Shoe Co. v. Hilig, 70 Mo.App. 301; Linn v. Bridge Co., 78 Mo.App. 111; Connor v. Ins. Co., 78 Mo.App. 131; Schnieder G. Co. v. Fink Co., 78 Mo.App. 622; Orcheln v. Scott, 79 Mo.App. 534; Fullerton v. Fordyce, 121 Mo. 13; Freeman v. Railway, 95 Mo.App. 314.
This is an action which was brought by plaintiff against defendant, a city of the fourth class, to recover damages for injuries occasioned by negligence. The evidence tends to prove that at the time of the injury the defendant was putting in a system of waterworks and had dug a ditch along Sixth street in front of the grounds of the Normal school where plaintiff was then working, and had left it open and without guard rails or lights for about one month; that opposite the entrance of the Normal grounds a narrow path or passway had been left where the ground was unbroken; that on the night in question, which was very dark, the plaintiff attempted to cross the street south of said grounds, to visit friends living on that side of the street and fell into the ditch and was rendered unconscious and lay there for perhaps an hour when she was discovered by a stranger passing, who rescued her; that at that time she was a strong, healthy young woman of 26, and had never had any serious illness; and that as a result of the injuries received under the circumstances aforesaid, her health was completely wrecked, so that for years she had been unable to work, and for more than six years before the trial had been continuously under the care of a doctor, and much of the time in the hospital.
There was a trial which resulted in a judgment for plaintiff and defendant appealed. The defendant assails the judgment on a great number of grounds, the first of which being that the petition does not state facts sufficient to constitute a cause of action, or if so, that the evidence is insufficient to support it.
By the common law of England, as it is interpreted in the English courts, by the Supreme Court of the United States, and by the highest courts of most of the States, an action on the case for negligence can always be brought against a chartered municipality for neglect to keep the streets over which it had control in a reasonably fit condition for use by any number of the public for any purpose for which a public street is designed. Jones on Neg. Munic. Corp., sec. 72; Ball v. Independence, 41 Mo.App. 469.
The evidence as presented by the abstract in the present case is not materially variant from that brought before us by the former appeal--85 Mo.App. 159--where, after an examination of it, we concluded it was ample to entitle the plaintiff to a submission to the jury; and we are unable now to discern any reason why we should depart from that conclusion. Besides this the abstract now before us does not purport to contain all the evidence adduced at the trial, and for that reason we do not feel at liberty to examine it for the purpose of determining whether or not the evidence was sufficient to make out for plaintiff a prima facie case. Nor do we think this to be a case where the undisputed facts were such that reasonable minds could draw no other conclusion from them than that the plaintiff was guilty of contributory negligence and that therefore the question of negligence was one for the court. Fowler v. Randall, ...
To continue reading
Request your trial