Eth v. Kansas City

• Decision Date: 12 June 1933
• Docket Number: No. 17795.,17795.
• Citation: 63 S.W.2d 203
• Parties: ETH v. KANSAS CITY.
• Court: Missouri Court of Appeals

63 S.W.2d 203

ETH v. KANSAS CITY.

No. 17795.

Kansas City Court of Appeals. Missouri.

June 12, 1933.

Rehearing Denied July 25, 1933.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Action by Willis F. Eth against Kansas City. Judgment for plaintiff, and defendant appeals.

Affirmed.

George Kingsley, City Counselor, and John J. Cosgrove, Asst. City Counselor, both of Kansas City, for appellant.

Harry G. Kyle and Hume & Raymond, both of Kansas City, for respondent.

TRIMBLE, Judge.

In an action by plaintiff to recover damages for personal injuries alleged to have been sustained by reason of a defect in Troost avenue, one of the streets in Kansas City, the jury returned a verdict of $10,000, which the trial court, by an enforced remittitur of $4,000, reduced to $6,000 and rendered judgment thereon. The city has appealed.

The petition alleged that:

"On March 22nd, 1929, and for a long time prior thereto there existed in the pavement of Troost Avenue at a point about 30 to 40 feet north of 44th Street and within 18 inches of the south bound car tracks on said Troost Avenue a hole or depression in said street; that said hole or depression was about 12 inches deep, about 18 inches in width and about 3 feet in length and extended west from a point about 10 inches west of the west rail of the south bound car tracks; that the presence of said hole at said place rendered the street dangerous and in an unsafe condition for public travel; that plaintiff did not know of the presence of said hole;

"On March 22, 1929, about 8 P. M. he was operating an automobile in a southerly direction on Troost Avenue and was approaching 44th Street; that it was dark and plaintiff did not know of or see said hole or depression; that as he was proceeding south on Troost Avenue and had reached a point about 30 to 40 feet north of 44th Street the front wheels of his automobile dropped into said hole or depression causing said automobile to turn over and throwing plaintiff to the pavement of said street and as a direct result of which he received the following severe and permanent injuries: [Here the same were set forth.]"

It was further stated that:

"The defendant Kansas City negligently failed to exercise ordinary care to keep the said street at said place in a reasonably safe condition for public travel thereon in that they caused and permitted said hole to be and remain at said place after it knew or by the exercise of ordinary care could have known of its presence in time before said March 22, 1929, to have repaired the same but negligently failed to do so.

"The defendant negligently failed to place a barricade light, or warning over or around said hole or depression so as to warn plaintiff and others using said street of the presence of said hole.

"It negligently failed to keep said street at said place in a reasonably safe condition for public travel thereon in that it permitted said hole to be and remain at said place."

The answer was a general denial, coupled with a plea of contributory negligence in not looking to see where plaintiff was going and in violating a certain ordinance as to speed; but, as no point is made on this appeal as to contributory negligence, no necessity exists for consideration of this charge, which was denied in plaintiff's reply.

At the close of all the evidence, defendant offered a demurrer thereto, which the court overruled.

The errors complained of are: (1) The overruling of said demurrer; (2) the giving of plaintiff's instruction No. 1, on which his case was submitted; (3) the refusal of the court to discharge the jury when defendant moved to have the same done when a witness voluntarily testified that other vehicles at other times had struck the hole or depression complained of; (4) the refusal of the court in not compelling a larger remittitur than $4,000, and in not granting a new trial thereafter on the ground that the verdict, even after being so reduced, is still excessive.

As to the alleged error No. 1:

The evidence is that the accident occurred at the place, on the date, at the hour, and in the manner alleged. The evidence more particularly discloses that: "About three months before the accident a hole was cut in the pavement of Troost Avenue to get water or gas pipes buried in the street there. The hole was just west of the car track, was about three feet long east and west, 18 inches wide north and south, and eight or ten inches deep at the east end, decreasing somewhat in depth toward the west."

One witness, who was going north on Troost at the time plaintiff's car was coming south, witnessed the accident in controversy, and saw plaintiff's car turn over. In his testimony he describes the defect in the street as follows: "It appeared to me to be a plumber's cut in the street where evidently it had been doing some work or a water line or the sewer line or something. I would say the hole was sixteen or eighteen inches wide and the original cut had been about four feet long and on the east end right next to the concrete, where the railways company maintains, the hole was, oh, eight to ten inches deep, and, as I recall it, the hole was about nine inches out from this concrete and about eight or ten inches deep and from that point it tapers back to the end."

There was evidence also that, after the hole was dug, "chat" (rock crushed into small bits) was thrown into the hole, possibly filling it, but, being loose, it worked out of the hole in about a month. The material in the hole was the same color as the pavement. The hole was not easy to see, and one could not see it until within less than twenty feet of it. After the chat worked out, the hole was dangerous to travel. This dangerous condition of the street was reported to the city, but nothing was done about it. After waiting about two weeks, the witness who had reported the defect to the city again reported it, and this time the city had it filled with loose material as before; but this again worked out some time prior to the accident involved herein. The aforesaid witness again reported it, but they did nothing about it, but allowed conditions to remain as they were until the accident occurred and plaintiff was injured. Plaintiff was going from his mother's residence to a motorcar company's place of business at Forth-Sixth and Troost and on the side of the street on which plaintiff was traveling. He was not going over twenty-five miles an hour, and did not see the hole until he struck it. Another witness testified that the hole in question "was the only hole out there. The rest of the street was just as slick as a whistle."

A study of defendant's reason for saying the demurrer to the evidence should have been sustained reveals that it is grounded upon the idea that,...