Canter v. The City of St. Joseph

• Decision Date: 04 November 1907
• Citation: 105 S.W. 1,126 Mo.App. 629
• Parties: ELLA CANTER, Respondent, v. THE CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

105 S.W. 1

126 Mo.App. 629

ELLA CANTER, Respondent, v. THE CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

W. B Norris and O. E. Shultz for appellant.

(1) The demurrer offered by defendant at the close of the case and after all the evidence was introduced should have been sustained for the reason that the notice served upon the mayor of the city failed to allege the correct date of the injury received. For the reason that there was a variance in the evidence introduced as to the time of the injury received and the time stated in the notice. R. S. 1899, sec. 5724; Gardner v. New London, 28 A. 42; Larkin v Boston, 128 Mass. 522; Freligh v. Directors of Sogrates, 70 Hun 589, 24 N.Y.S. 182; Donnelly v Fall River, 132 Mass. 299; White v. Stowe, 54 Vt. 510; Lilly v. Woodstock, 59 Conn. 219, 22 A. 40; Giddings v. Iowa, 54 Vt. 346; Taylor v. Inhabitants of Woburn, 130 Mass. 498; Sherry v. Rochester, 62 New Hampshire 346; Lyons v. St. Joseph, 112 Mo.App. 683; Lincoln v. Grant, 56 N.W. 995; Trost v. Caselton, 79 N.W. 1071; Gardner v. New London, 28 A. 42; Fields v. Railroad, 4 A. 105. (2) The court committted error in permitting plaintiff's witnesses, over the objection of defendant, to testify that in their opinion, Saunders, the driver of the horse and buggy, from which plaintiff was thrown, did everything that could be done to manage and control the horse at the time plaintiff was injured. This was error for the reason that it was defendant's contention that Saunders was driving carelessly and that his negligence was plaintiff's negligence, if she had knowledge of same. It therefore became a question for the jury to pass upon and not for the witness. Sparr v. Willman, 11 Mo. 230; King v. Railroad, 98 Mo. 235; Gregory v. Chambers, 78 Mo. 294; Railway v. Stock Yards Co., 120 Mo. 541.

Allen & Nichols for respondent.

(1) Appellant complains that the trial court refused to give instruction numbered seven asked for by appellant. The instructions given by the trial court fairly and properly submitted the proposition contained in appellant's refused instruction. It is therefore immaterial whether the court refused this instruction, conceding that the instruction was a correct declaration of law. Dickson v. Atkinson, 86 Mo.App. 25; Yocum v. Town of Trenton, 20 Mo.App. 489; Owens v. Railroad, 95 Mo. 169. (2) Appellant complains that the notice required by Statute to be served on the Mayor is insufficient to support respondent's action. We respectfully submit that in passing on the sufficiency of this notice, the court will apply the same liberality in construing a notice as to the date of the injury, as it would if the place or the circumstances of the injury were in question. Reno v. St. Joseph, 169 Mo. 655; Dalton v. Salem, 136 Mass. 279; George v. Edelbrock, 97 Mo.App. 63; Lyons v. St. Joseph, 112 Mo.App. 681; Lincoln v. O'Brien, 77 N.W. 76; Hammock v. Tacoma, 40 Wash. 539; Cloughessey v. Waterbury, 51 Conn. 405. (3) Notice of injury is properly given and the claim is properly presented, by delivering a copy of the original written notice to the Mayor. Kelley v. Minneapolis, 79 N.W. 653; Ljungberg v. Village, 92 N.W. 401; Williams v. Brummel, 4 Ark. 129; Deimel v. Obert, 20 Ill.App. 557. (4) Defect in notice, being a mere clerical error should be disregarded, in the absence of testimony that city was misled. Kleyly v. Oswego, 95 N.Y.S. 879; Bell v. Spokane, 71 P. 31; Strange v. St. Joseph, 112 Mo.App. 633; Burnett v. St. Joseph, 112 Mo.App. 668; Reno v. St. Joseph, 169 Mo. 655; R. S. 1899, sec. 865; Franke v. St. Louis, 110 Mo. 552.

OPINION

JOHNSON, J.

--Action against St. Joseph, a city of the second class, to recover damages for personal injuries alleged to have been caused by the negligence of defendant in permitting an obstruction to remain in the roadway of one of its public thoroughfares. Plaintiff had judgment in the sum of $ 1,900.

It is insisted that the jury should have been directed peremptorily to return a verdict in favor of defendant for the reason that the notice given by plaintiff, under the provisions of section 5724, Revised Statutes 1899, gave the 4th day of December, 1905, as the date of the injury, while the allegations of the petition and the proof show the event occurred one week later. The notice delivered to the mayor on the 14th day of December, three days after the injury, was as follows: (Formal parts omitted).

"You and each of you are notified that on Monday, the 4th day of December, 1905, while affiant, Ella Canter, was riding in a buggy drawn by one horse driven by her brother, George Saunders, on and along the east side of King Hill avenue, in the city of St. Joseph, Missouri, northward, the said horse became frightened by means of a street car approaching from the south going northward with great noise and speed. That said horse first attempted to run away, but being unable to do so, jumped to the right, causing the right wheel of said buggy to come in contact with and run against and over a large block of frozen earth and rock, causing said buggy to be so titled as to throw this affiant, Ella Canter, with the baby in her arms, out onto the brick pavement on said street, breaking her right arm, cutting her head and face, injuring her eye and spraining her back, and hurting her internally and throughout her body. Affiant, Ella Canter, further states that said block of frozen dirt and rock was from twelve to seventeen inches thick and about three feet long and two feet wide, that several weeks prior to the time when affiant was injured said block of frozen dirt and rock slid down from the bank at the east side of said King Hill avenue onto and to the distance of 4 1/2 feet within the main part of said King Hill avenue and west of the stone gutter on the east side thereof, and which stone gutter was on the line between the sidewalk and main traveled street; that said block of frozen dirt and rock for a long time prior to the said 11th day of December, 1905, to-wit: for a space of about one month, remained in and on said street, King Hill avenue as aforesaid; affiant further states that said block of frozen dirt and rock and the place where said affiant, Ella Canter, was injured was at and near a street railway trolley pole near the curb line on east side of said King Hill avenue, which said trolley pole counting from the south end of the South Sixth street viaduct southward on the east side of said King Hill avenue being about 1,800 feet south of the south side of South Sixth street viaduct, in the city of St. Joseph, Missouri, and measuring south along the east side of said King Hill avenue. Affiant further states that the cross streets in this vicinity are not marked, laid out or numbered, and that she cannot give a more definite description of the place where she was injured, as aforesaid, but that it was at a point about one hundred feet south of where Deer street if extended east would intersect King Hill avenue, in St. Joseph, Missouri. Affiant further states that she does and will claim damages of the city of St. Joseph, Missouri, on account of said injuries sustained by her, and that she will institute a suit in the circuit court of Buchanan county, Missouri, for the purpose of recovering such damages as may fairly compensate her for such injuries."

It will be observed that the 4th day of the month first is specified as the date of the occurrence, but in a subsequent place, that event is referred to as though stated to have occurred on the 11th. One of the attorneys for plaintiff in his testimony accounts for this apparent discrepancy in this manner: The original notice was written by him in longhand and when he inserted the date appearing first therein, he erroneously wrote "Monday, the 4th day of December, 1905." Discovering the mistake, he attempted to correct it by writing over the figure "4" the number "11" but the result was a confusing blot, from which a person could decipher either a "4" or "11." When he had occasion again to refer to the date, he wrote it as the "said 11th day of December, 1905." After completion, the notice was copied by his stenographer, who rendered the blot into a figure "4." This typewritten copy was afterward delivered to the mayor.

In Lyons v. St. Joseph, 112 Mo.App. 681, 87 S.W. 588 we held that "The giving of the notice in substantial compliance with the requirements of the statute is a condition precedent to the right to recover. Four points must be covered therein: The time, place and circumstances of the occurrence must be stated, together with the character of the injuries sustained. Actual knowledge of the officers of the city relative to these facts, or any of them, is without effect to dispense with the giving of the notice or with the statement therein of any essential fact." And further, we held that it was...