Company v. Stone

• Decision Date: 19 April 1890
• Parties: UNION STREET RAILWAY COMPANY et al. v. HILIE STONE
• Court: Kansas Supreme Court

37 P. 1012

54 Kan. 83

UNION STREET RAILWAY COMPANY et al. v. HILIE STONE

Supreme Court of Kansas

April 19, 1890

Decided July, 1894.

Error from Cowley District Court.

ON the 19th of April, 1890, the plaintiff, Mrs. Hilie Stone, filed her petition against the city of Winfield and the Union Street Railway Company, as defendants, to recover $ 5,000 damages for personal injuries. The petition alleged that while she was driving along Ninth avenue in said city, on the 24th day of May 1888, she received the injuries complained of, by reason of the alleged negligent manner in which the street railway was constructed over and along Ninth avenue and by which it was a dangerous obstruction to travel along the avenue; and that the city had carelessly and negligently permitted the street railway company to construct and maintain the track of its line on the street in such a careless and negligent manner as to dangerously obstruct travel. The petitioner was answered by both defendants separately, and the case was tried on the 24th day of September, 1890, resulting in a verdict for $ 650 in favor of the plaintiff and against both defendants. The jury also returned the following special findings:

"1. Is the place where the injuries are said to have been received by the plaintiff within the corporate limits of the city of Winfield? A. Yes.

"2. Was the injury received on the line of the street railway company on a public street in the city of Winfield? A. Yes.

"3. What was the date of the accident in question? A Twenty-fourth of May, 1888.

"4. Was the plaintiff's team frightened and running away at the time of the occurrence of the accident? A. Yes.

"5. If you answer the last question 'yes,' state what caused the plaintiff's team to become frightened. A. Grating of the buggy wheel on the track of the street railway.

"6. What route or course was pursued by the team after the same became frightened, if you find that to be the fact? A. About west.

"7. Where did the accident occur with reference to the Santa Fe railroad, and how far from it? A. About 100 feet west."

"12. How much has the plaintiff expended for medical treatment and medical attendance occasioned by her injuries? A. Don't know.

"13. How much do you allow the plaintiff for her bodily and mental anguish and suffering, if anything? A. $ 200.

"14. How much do you allow the plaintiff for the bodily injuries received? A. $ 400.

"15. How much, if anything, do you allow the plaintiff for loss of time and labor? A. $ 50.

"16. Where did plaintiff cross the street railway the first time with reference to the track of the 'Frisco' road? A. East of 'Frisco' railroad track."

"18. Could she not have gone straight west on the street on the south side of the railway track? A. Yes.

"19. Was the front left wheel of the buggy dished or injured on account of plaintiff crossing the street railway track the first time? A. Yes."

"22. Was the plaintiff guilty of negligence in crossing the street railway track either time? A. No.

"23. What caused the buggy to turn over? A. Obstruction of the street railway track in center of street."

"26. At the time of the accident, was there room on each side of the street railway track for teams to pass east and west on the street without coming in contact with the track of the street railway? A. Yes.

"27. At the time of the injury, was the street on each side of the street railway track, at the place where plaintiff was driving, in a condition that a reasonably prudent person could have driven along in safety at the place where the accident occurred? A. Yes.

"28. Did the city in any way by its negligence contribute to the injury of the plaintiff? A. Yes.

"29. If you answer the last question in the affirmative, please state how. A. By the city officials of the city of Winfield not enforcing the city ordinances of the city of Winfield Kan., compelling the Union Street Railway Company to comply with said ordinance in the construction of said street railway."

Judgment was entered in favor of plaintiff and against both defendants upon the verdict. The defendants bring the case here.

Judgment affirmed

Madden & Buckman, for plaintiffs in error:

1. Applying the most liberal rules of construction and interpretation, the petition fails to state several very necessary and material facts in order to plead a cause of action against the city of Winfield, and must be held fatally defective. The court erred in not sustaining the objection of said city to the introduction of any evidence thereunder. See City of Topeka v. Tuttle, 5 Kan. 311; Kansas City v. Bradbury, 45 id. 381.

2. The court erred in admitting in evidence the opinion of witnesses as to the street car track at the point of the accident being a dangerous obstruction. See Gabbey v. Forgeus, 38 Kan. 62; City of Topeka v. Sherwood, 39 id. 690; St. L. & S. F. Rly. Co. v. Ritz, 33 id. 404; Tefft v. Wilcox, 6 id. 46; Da Lee v. Blackburn, 11 id. 190; Rice, Ev. 357, 358; Crane v. Northfield, 33 Vt. 124; Brown v. Road Co., 89 Mo. 152; Kelly v. Fond du Lac, 31 Wis. 179; City of Parsons v. Lindsay, 26 Kan. 426; Gilmer v. City of Atlanta, 77 Ga. 688.

3. Over the objections of the defendants, the court permitted the plaintiff to read in evidence, from the ordinance book of the city, ordinance No. 258, granting the defendant railway company a franchise to lay its tracks in the streets.

4. The case ought to be reversed on account of the misconduct of the court at the trial, which was very prejudicial to the rights of the defendants and absolutely out of place on the part of the court. In the interest of right, a reviewing court ought jealously and critically to examine and consider the remarks of the court below in the presence of the jury, and if, by implication or inference, influence would be the result of such remarks, then they should be held to vitiate the verdict, and warrant a reversal. See Brunker v. Cammins, 32 N.E. 732; McIntosh v. McIntosh, 44 N.W. 592; Chicago City Railways v. McLaughlin, 40 Ill.App. 496; Graham v. McReynolds, 90 Tenn. 673; Darrow v. Pierce, 51 N.W. 813.

5. At the conclusion of plaintiff's testimony, the defendants each filed a written demurrer to such testimony, and both were overruled by the court pro forma -- refusing to hear arguments. That these demurrers should have been sustained by the court, seems almost a self-deducting conclusion.

It was held in City of Wellington v. Gregson, 31 Kan. 99, that, "While, generally speaking, it is the duty of a city to keep its streets in reasonably safe condition for public travel, it is not thereby implied that every street, and the whole width of every street, must be placed and kept in good condition."

See, also, Osage City v. Brown, 27 Kan. 74; Corbett v. City of Leavenworth, 27 id. 673; Koonetski v. City of Detroit, 94 Mich. 341, 53 N.W. 1106; Hausman v. Madison, 55 N.W. 167; Wright v. City of St. Cloud, 55 N.W. 819; Flynn v. Neosho, 21 S.W. 903; Norwood v. City of Somerville, 33 N.E. 1108.

It has been held that there is no liability if the negligent obstruction and a runaway team concur in producing the injury. Moulton v. Sanford, 51 Me. 127; Perkins v. Fayette, 68 Ind. 152; Davis v. Dudley, 4 Allen, 557; Titus v. Northbridge, 97 Mass. 258; Brown v. Mayor, 57 Mo. 156; Dreher v. Fitchburg, 22 Wis. 643; Houfe v. Fulton, 29 id. 296; Olson v. Chippewa, 71 id. 558.

6. The court erred in refusing to charge the jury in writing and separately state and number the paragraphs of the charge.

See City of Atchison v. Jansen, 21 Kan. 560; Patterson v. Ball, 19 Wis. 259; Rich v. Lappin, 43 Kan. 667; The State v. Stoffel, 48 id. 364; The State v. Bennington, 44 id. 583, and cases cited; Brown v. Crawford, 29 P. 1137; Jenkins v. Wilmington &c. Rly. Co., 110 N.C. 438.

7. The court erred in instructing the jury on the question of contributory negligence.

See A. T. & S. Rld. Co. v. Morgan, 31 Kan. 77; Railway Co. v. Peavey, 29 id. 169; Railway Co. v. Young, 19 id. 488; Railway Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, 10 id. 466.

See, also, Mongehella v. Fisher, 111 Pa. 9; same case, 13 Am. & Eng. Corp. Cas. 431; Strong v. Placerville Rld. Co., 61 Cal. 321; Otis v. Janesville, 47 Wis. 422; Cremer v. Portland, 36 id. 92; Mattimore v. City of Erie, 144 Pa. 14; Supply Co. v. Bundy, 122 id. 449; McAnich v. Railway Co., 20 id. 338.

8. The court erred in instructing the jury upon the measure of the duty of the defendants. See 2 Dill. Mun. Corp., § 721; Street Rly. Co. v. De Laster, 84 Tex. 82; Smith v. City of Pella, 53 N.W. 226; McNeoney v. Reading, 150 Pa. 611, 25 A. 57; Elliott, Roads & St., pp. 586, 587; Hays v. Gainesville etc. Rly. Co., 70 Tex. 602; City Rly. Co. v. Nolan, 53 Tex. 139; McKillop v. Street Rly. Co., 55 N.W. 739; Union Rly. Co. v. Alexander, 93 Ala. 133, 9 S. Rep. 527; Fitts v. Cream City Rld. Co., 59 Wis. 328.

9. The court erred in instructing the jury as to the measure of damages in case they should find for the plaintiff below. The basis of the claim in the petition is the fact that she was unable to attend to her business and work. Being a married woman, under the rule laid down by this court in the case of A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, such a claim for damages is untenable, so far as she is concerned; and, under the petition, and without the petition being amended, the instructions were absolutely erroneous, and gave the jury a false idea of what they were to consider and estimate in arriving at a verdict.

The instruction with reference to mental anguish was erroneous and the finding shows that the jury took that into consideration, and presumably they must have followed the charge of the court. See Masters v. Warren, 27 Conn. 293; Railroad Co. v. Sum, 73 Ga. 712; Railroad Co. v. Randall,...