Ezell v. Kansas City
| Decision Date | 13 July 1953 |
| Docket Number | No. 1,No. 43248,43248,1 |
| Citation | 260 S.W.2d 248 |
| Parties | EZELL v. KANSAS CITY |
| Court | Missouri Supreme Court |
Morris Dubiner, Robert E. Gregg, Thomas E. Hudson, Hudson, Whitcraft & Cavanaugh, Kansas City, for appellant.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, Kansas City, for respondent.
VAN OSDOL, Commissioner.
This is an appeal from a judgment upon verdict for defendant in an action for $10,000 damages for personal injuries allegedly sustained by plaintiff when the right front wheel of an automobile in which plaintiff was riding and which was being driven by plaintiff's husband went into a hole or opening in the surface of Myrtle Avenue, a public street in Kansas City.
Herein plaintiff-appellant complains of Instructions Nos. 8 and 9, given by the trial court at the instance of defendant City.
Defendant-respondent, City of Kansis City, has moved to dismiss the appeal on the asserted ground that appellant's brief fails to comply with Supreme Court Rule 1.08. Although the motion to dismiss is correct in stating appellant's violation of the Rule, we have examined the case on the merits and have come to the conclusion there was prejudicial error in instructing the jury. In this case, therefore, we will not dismiss the appeal. But we are not intending to depreciate the importance of Rule 1.08, and reference is made to Ambrose v. M.F.A. Cooperative Ass'n of St. Elizabeth, 266 S.W.2d 647, decided by Division Number One, July 13, 1953, for a discussion of the reasons compliance with the Rule is so important, and of so much value to the parties litigant and to an appellate court. And it must be noted that this court in the Ambrose case has warned that dismissal of appeals may become necessary in order to obtain compliance with the Rule.
Plaintiff, in stating her claim, alleged that she was a passenger in an automobile operated by her husband in a southerly direction on Myrtle Avenue; and that the automobile "dropped into a large hole, and opening located in said street ***." Plaintiff alleged and the trial court submitted that defendant negligently caused and permitted the hole to be in the street whereby the street became and was in a dangerous and hazardous condition for travel. Defendant City by answer alleged contributory negligence of plaintiff "in failing to use plaintiff's eyes and senses in the selection of the course plaintiff was pursuing, and *** in failing to use plaintiff's eyes and senses in the use of said course."
There was evidence tending to show that the pavement near the west curb of Myrtle Avenue, between Fifteenth and Sixteenth Streets, was opened in late January, 1949, by employees of City's water department. The area of the opening was "about three to four feet from east to west and around two feet north and south." Water was "leaking there beforehand." The earth beneath the opening was excavated to a depth of approximately three feet. At the time, water service was renewed and the hole was "backfilled." An order to repair and repave "the cut" was issued by City's public works department February 2, 1949. This work was completed February 28, 1949. But plaintiff had been injured February 18th. As stated, plaintiff was riding in an automobile driven by her husband southwardly along the west side of Myrtle Avenue and was injured when the right front wheel of the automobile dropped into the "backfilled" hole.
When the hole was backfilled, January 29th, it was "filled in with just loose dirt." It was just It was just "mud and water down in there, filling, that is what made it cave." Plaintiff resided close by and knew there had been an excavation which had been refilled. The Plaintiff had passed over the place in an automobile two or three days before she was injured. It appeared "reasonably safe." Plaintiff said, "The only thing that I can say that happened, we were driving along and a part of the street collapsed."
Instruction No. 8 told the jury "that if you find and believe from the evidence that plaintiff at the time and place in question knew, or by the exercise of ordinary care could have known of the condition complained of in the street described in evidence in time to have warned her husband of its existence so that he could have stopped said automobile or altered the course thereof and thereby have avoided striking said hole, by the exercise of the highest degree of care, but plaintiff negligently failed to do so and was injured by reason of such failure, if any, then your verdict must be for the defendant ***."
Instruction No. 9 was as follows, "You are instructed that if you find and believe from the evidence that the hole mentioned in evidence had been filled in before the events transpiring on the evening of February 18, 1949, described in evidence and that the accident described in evidence was caused by a cave-in of the filling of said hole, when the automobile was driven thereon, then your verdict must be for the defendant ***."
While negligence, if so, of plaintiff's husband in operating the automobile over the opening in the surface of the street was not to be imputed to plaintiff, yet plaintiff was obliged to exercise ordinary care for her own safety, and, if negligent, was barred from recovery by her own negligence directly contributing to her injury. "When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle, and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery." Berry, Law of Automobiles, 7th Ed., Sec. 5.172, pp. 260-261, cited and quoted in Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21, and in Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865. See also Warren v. Giudici, 330 Mo. 483, 50 S.W.2d 634; Boland v. St. Louis-San Francisco R. Co., Mo.Sup., 284 S.W. 141; Corn v. Kansas City, C.C. & St. J.R. Co., Mo.Sup., 228 S.W. 78.
It is doubtful that sufficient evidence was introduced of the appearance of the refilled opening...
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