Delaplain v. Kansas City

• Decision Date: 07 November 1904
• Parties: ELIZABETH DELAPLAIN, Appellant, v. KANSAS CITY et al., Respondents
• Court: Kansas Court of Appeals

83 S.W. 71

109 Mo.App. 107

ELIZABETH DELAPLAIN, Appellant, v. KANSAS CITY et al., Respondents

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

AFFIRMED.

Cause affirmed.

C. E Burnham for appellant.

(1) The first instruction given by the court for the plaintiff was a correct measure of the city's duty. And when read with the second instruction for plaintiff, and the fourth and fifth given for defendants the "condition of reasonably safety" was limited to mean the placing of lights or barriers by either of them, even though removed before the accident. (2) That "the city is bound to keep its streets free from obstructions and reasonably safe for travel thereon, and is liable for an injury by a neglect of this duty, nor can this duty be evaded, suspended or cast upon others," is a proposition too well founded to be shaken after the appellate courts have spoken in the following cases: Jerowitz v. Kansas City, 77 S.W. 1088; Burdoin v. Trenton, 116 Mo. 358; Smith v Brunswick, 61 Mo.App. 580; Wallis v. Westport, 82 Mo.App. 526; Russell v. Columbia, 74 Mo. 490; Morton v. St. Louis, 97 Mo. 541; Kiley v. Kansas City, 87 Mo. 103; Bassett v. St. Joseph, 53 Mo 298; Bonine v. City, 75 Mo. 438; Loewer v City, 77 Mo. 437; Stephens v. City, 83 Mo. 345; Carrington v. City, 89 Mo. 208; Hanover v. City, 103 Mo. 181; Barr v. City, 105 Mo. 555; Sindlinger v. Kansas City, 126 Mo. 324; Franke v. St. Louis, 110 Mo. 521; Stern v. St. Louis, 161 Mo. 150; Taubman v. Lexington, 25 Mo.App. 226; Smith v. St. Joseph & Pat Morley, 42 Mo.App. 397; Ray v. Poplar Bluff, 70 Mo.App. 256; Welsh v. City, 73 Mo. 73; Blake v. St. Louis, 40 Mo. 570; Bowie v. Kansas City, 51 Mo. 461; Reidy v. Brewing Assn. & City, 161 Mo. 536; Kassman v. St. Louis, 153 Mo. 299; Warren v. Independence, 153 Mo. 598; Carrin v. St. Louis, 151 Mo. 345; Ball v. Independence, 41 Mo.App. 475. (3) Complaint is next made of the fourth instruction for plaintiff. This instruction was proper and the court committed no error in giving it. Brown v. Railroad, 66 Mo. 588; Owens v. Railroad, 95 Mo. 182; Littlehale v. Dicks, 11 Cush. 364; State v. Morthy, 33 Iowa 270; Allison v. Railroad, 42 Iowa 274; Elliott v. Kansas City, 74 S.W. 620. The petition charged a bruise and injury to the left side and spleen. Now it is no matter of difference whether it was a healthy spleen or a diseased spleen. (4) The court committed no error in refusing to give the instruction as to form of verdict in case jury found for one defendant and against the other. The case was tried entirely on the theory that both defendants were liable to plaintiff or that neither was liable.

Lathrop, Morrow, Fox & Moore, Cyrus Crane and J. P. Gilmore for respondent Michael Walsh; R. J. Ingraham for respondent Kansas City.

(1) The law presumes that the action of the trial court in granting a new trial herein was correct, that any error occurring in the trial was prejudicial to the defendant, and will sustain the action of the trial court, if it can be so done, upon any ground alleged in the motion for new trial. Kuenzel v. Stevens, 155 Mo. 280; Hoepper v. Hotel Co., 142 Mo. 378; Ittner v. Hughes, 133 Mo. 680; Bunyan v. Railway, 127 Mo. 13; Taliafferro v. Evans, 160 Mo. 380; McCullough v. Ins. Co., 113 Mo. 607; Bank v. Armstrong, 92 Mo. 265; Longdon v. Kelly, 51 Mo.App. 572; Ensor v. Smith, 57 Mo. 584; Gray v. Railroad, 54 Mo.App. 666; Saville v. Huffstetter, 63 Mo.App. 273; Johnson v. Boonville, 85 Mo.App. 199. (2) The court erred in giving instruction number 1 as requested by the plaintiff, and its action in granting a new trial, therefore, was proper. Elliott v. Kansas City, 174 Mo. 554; Carvin v. St. Louis, 151 Mo. 345; Smith v. City, 61 Mo.App. 378; Hunt v. New York, 109 N.Y. 134; Lane v. Hancock, 142 N.Y. 510; Nesbit v. City, 69 Miss. 22; Michigan City v. Boeckling, 122 Ind. 39; State v. Hudspeth, 150 Mo. 31; Hurt v. Railroad, 94 Mo. 255; Oglesby v. Railroad, 150 Mo. 163; Fisher v. Railroad, 156 Mo. 479; Cook v. Railroad, 94 Mo.App. 417; Moore v. Richmond, 85 Va. 538; Pavey v. Railroad, 85 Mo.App. 218; City v. Baily (Ky.), 74 S.W. 688; City v. Asmas (Ky.), 68 S.W. 646; Ball v. City, 41 Mo.App. 475; Ray v. City, 70 Mo.App. 253; Meyer v. City, 109 Mo. 480; Sinberg v. Falk Co., 98 Mo.App. 546; Stanley v. Railroad, 114 Mo. 606; Schweickhardt v. City, 2 Mo.App. 571. (3) The court erred in giving instruction number 4 for plaintiff, and its action in awarding a new trial, was therefore proper. Blashfield on Instructions to Juries, section 84; Watson on Damages, section 206; 16 Ency. Pl. and Pr., 427; Wilkinson v. Steele & Spring Works, 73 Mich. 405, 41 N.W. 490; Fuller v. Mayor, 92 Mich. 197, 52 N.W. 1075; Thurston v. Luce, 61 Mich. 48, 28 N.W. 103; Heirn v. McCaughan, 32 Miss. 17; Hall v. City, 114 Mich. 99, 72 N.W. 33; Christian v. Ins. Co., 143 Mo.App. 469; Kirby v. Railroad, 85 Mo.App. 345; Banks v. Westlake, 21 Mo.App. 565; Wright v. Fonda, 44 Mo.App. 642. (4) The court erred in refusing to give defendant's instruction four. See authorities under point 2; Badgley v. St. Louis, 149 Mo. 122; Wiggins v. City, 135 Mo. 558; Berkson v. Railroad, 144 Mo. 211. (5) Plaintiff's instructions as a series did not properly present the issues to the jury, and upon the entire record the court was right in granting a new trial. (6) Error having been shown in the record, this court will presume that it was prejudicial, and will not interfere with the discretion of the trial court in granting a new trial herein. Hoepper v. Stevens, 142 Mo. 378; Bunyon v. Railroad, 127 Mo. 13; Longdon v. Kelly, 51 Mo.App. 572; Ensor v. Smith, 57 Mo.App. 584; McVey v. Barker, 92 Mo.App. 498; Camp v. Railroad, 94 Mo.App. 272; Bindbeutal v. Railroad, 43 Mo.App. 463.

OPINION

BROADDUS, J.

This is a suit for damages as the result of injuries plaintiff sustained by reason of the alleged negligence of the defendants. It appears from the record that defendant Walsh had contracted with the city to construct a sewer on Woodland avenue and other of its streets; that at the intersection of said named street with Howard avenue he had made an excavation 11 feet long and 4 feet wide extending over the lines of the sidewalk about 4 or 5 feet; and that the sewer pipe had been placed but the hole was not entirely filled up nor the pavement restored. While plaintiff was passing along at night, she stepped into the hole, fell and was injured. There was a conflict of evidence as to whether the place was properly guarded against danger.

The petition alleged that plaintiff's leg was broken and that she was injured in her spleen. And the evidence tended to show that her leg was broken, that there was ankylosis of the ankle, and that her spleen was injured. It was developed on cross-examination that there had been a prior injury or disease of plaintiff's spleen, and that this injury was aggravated by the fall.

The verdict was for the plaintiff which the court set aside because of the error in giving and refusing instructions. The plaintiff appealed from the action of the court setting aside the verdict and granting a new trial. The following memoranda on file indicated the reason on which the court acted in so granting a new trial:

"The first instruction states the law too broadly for the facts of the case. A city may close a street to make improvements in it or it may partially close it, and if it does this, it is then its duty to place lights and barriers to warn passersby of the danger. This instruction was undoubtedly suggested by a clause in the petition which was unnecessary and should not have been there. I refer to the allegation that the city knew, or by ordinary care could have known, of the hole in the street. If the city made a contract with its codefendant to build a sewer, then authorized the street to be dug up, etc., no notice was necessary. The first instruction having been given, then an instruction permitting a finding against either defendant should have been given. Defendant Walsh asked such an instruction and it was refused."

Said first instruction is as follows: "The jury is instructed that it was the duty of the defendant city to keep Woodland avenue and Howard street, at the place where said streets cross each other, in a condition of reasonable safety for legitimate travel thereon by night as well as by day."

Said instruction is admitted by the defendants to be correct as an abstract proposition of law but they deny that it had any application to the facts. While it is true, as a general rule, that it became the duty of defendant city to keep its streets in a reasonably safe condition for travelers passing over them in the exercise of due care, the evidence showed that the street in question was not in a safe condition, for it was torn up for the purpose of constructing a sewer--a necessary improvement which the city was authorized to make. The case is not founded upon the theory that it was the duty of the city in this particular instance to keep its street in a reasonably safe condition, but upon the theory that it was in an unsafe condition, and defendants did not use proper care in providing means by which travelers might be protected from injury while passing over it. This case is a fair illustration of the inadvisability of instructing juries on mere abstract questions of law. And while such a practice in many instances may not have the effect to mislead a jury, it may do so. And as the court saw fit to grant a new trial for the error, we do not feel at liberty to interfere with its discretion in so doing. "The function of granting new trials belongs naturally and peculiarly, though not exclusively, to trial courts, and only in cases free from doubt will the appellate court reverse...