Fields v. Kansas City

Decision Date09 November 1964
Docket NumberNo. 50800,50800
Citation383 S.W.2d 543
PartiesGerald K. FIELDS, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
CourtMissouri Supreme Court

Robert L. Robertson, Kansas City, Marvin Pollard, Ludlow, Walter A. Raymond, and Raymond, West & Cochrane, Kansas City, for respondent.

Herbert C. Hoffman, City Counselor, Robert A. Meyers, Associate City Counselor, Timothy D. O'Leary, Assistant City Counselor, for appellant.

EAGER, Chief Justice.

This is a suit for personal injuries which, after a rather extended career, has been transferred here from the Kansas City Court to Appeals by our order. The opinion of the Court of Appeals appears at 377 S.W.2d 528. A prior opinion appears at 358 S.W.2d 96. In the last opinion a plaintiff's verdict for $14,000 was affirmed. One of the questions considered was the correctness of a ruling refusing an instruction offered by defendant on contributory negligence. The present opinion will deal principally with that question.

We shall only need to state the facts very briefly. They appear rather fully in the last opinion of the Court of Appeals and also in the prior opinion. The casualty occurred on September 5, 1956, in Kansas City. Plaintiff fell into an open sewer manhole in an alley at night. He was a construction worker and, after finishing his work for the day, he called a friend or relative at Ludlow, Missouri, agreeing to meet him later that night and bring him to Kansas City. First, however, he proceeded to the '111 Club' on the south side of East 13th Street, adjoining the alley between Walnut and Grand. He drove down the alley and parked near the west end of a parking lot on the east side of the alley, about midway of the block. He then walked back north through the alley to 13th Street, about 8:15, when it was still somewhat light. In doing so, he met the operator of the tavern and another man on the sidewalk, and one of them said that some 'gas' had been escaping and an investigation was being made. He saw nothing unusual in the alley, but when he first saw these men they were standing somewhat near the sewer manhole and one of them had some kind of an 'instrument.' Plaintiff went on into the tavern and, according to his testimony, ate two sandwiches and had two drinks, leaving at some time after 10:00 o'clock.

There is much controversy concerning the extent of light in the alley at the time plaintiff left the tavern. There were regular street lights on 13th Street, east and west of the alley; these shone into the mouth of the alley for perhaps 10-12 feet. The sewer manhole was approximately 24 feet south of the sidewalk. In the region around the sewer manhole there were shadows caused by the buildings fronting on 13th Street. A little further south the alley was relatively light because of open parking lots on each side. As to the light at the point now in question, there was, as stated, considerable controversy. Plaintiff testified: that you 'couldnt see no distance ahead of you'; that the dark manhole cover and the surface of the alley more or less blended; that he could not see the open hole before he fell into it, but that you could see the surface of the alley; also, that he saw no liquid on the surface of the alley, (although a photograph shows that some water had been spilled) and that he saw no object there. The defendant's evidence (which we consider on the propriety of instructions) indicated that light from the street shone on a building and reflected down into the alley and that, while there were shadows, one could easily see the manhole from a distance of 8 or 9 feet; two witnesses testified that you could see the manhole from the sidewalk at night; one testified that in walking through the alley you could see small objects on the ground. There was also some evidence that pedestrians rather frequently used the alley as a shortcut during both day and night.

There had been complaints about gasoline escaping into the sewer in this neighborhood. An investigation had been made by the City while plaintiff was in the tavern, and a flusher truck had been ordered to flush the sewer at this particular manhole. The manhole cover had been removed and one truckload of water had been run into the sewer. The driver then left for another load of water, leaving the manhole open with no light, barricade or other warning. During that interval plaintiff emerged from the tavern, took the route down the alley to his car and stepped into the manhole. It will not be necessary for us to relate either the events immediately following, his injuries, or the medical testimony.

Plaintiff's case was submitted upon the alleged negligence of the City in leaving the manhole in a public alley open, unguarded and unprotected. The Court gave one instruction for defendant on contributory negligence. This, essentially, told the jury that if plaintiff saw or could have seen the open manhole in time to have avoided it in the exercise of ordinary care and failed to do so, and was thereby negligent, etc., he could not recover. This instruction was supported by defendant's evidence as to the extent of light, if not by plaintiff's. The Court refused the defendant's Instruction No. 12, also on the theory of contributory negligence, which is as follows:

'The Court instructs the jury that if you find and believe from the evidence that on September 5, 1956, between 10 P.M. and 11 P.M. the plaintiff left the 111 Club and walked down the alley in question, and if you further find that at said time there were no street lights or other artificial sources of light which illuminated said alley at the location of the manhole in question, if you so find, and that said alley at said location was so dark that plaintiff could not distinguish the surface of the alley, if you so find, and plaintiff fell into an open manhole therein, and if you further find that a reasonably safe and lighted sidewalk was available on 13th Street and on Grand Avenue for plaintiff's use but he chose to walk down the alley, and if you further find that plaintiff in choosing to walk in the alley under the conditions submitted above was negligent, and if you find such negligence directly caused or contributed to cause plaintiff's injuries, then your verdict must be for the defendant.'

The theory of defendant was and is that it was entitled to such an instruction as an alternative submission, based upon plaintiff's own testimony of the prevailing darkness. No point is made by plaintiff controverting the right to an alternative theory, as such, but plaintiff insists that this instruction would have created a duplication of instructions on contributory negligence, that the evidence did not support the instruction, and that it was inherently erroneous. There was no duplication; the two instructions were on wholly different theories, submitted in the alternative. See by way of analogy Siegel v. Peters, Mo., 347 S.W.2d 881. We ordered the case transferred because of the reasons given and the language used by the Court of Appeals in upholding the refusal of the instruction. The Court said that in submitting the alternative issue, the instruction '* * * should have required a finding to the effect that the way along the dark alley was so glaringly dangerous that an ordinarily careful person in the exercise of ordinary care would not have attempted to enter it.' As indicated later, such a holding is substantially equivalent to one finding that the plaintiff was negligent as a matter of law.

In most of the cited cases there was some impediment to travel or some defect which was known, or which should have been known, to plaintiff; in some, these were aggravated by darkness. Typical of the cited ca...

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3 cases
  • Bullock v. Benjamin Moore & Co., 8421
    • United States
    • Missouri Court of Appeals
    • 22 Mayo 1965
    ...seen and known' the danger of explosion. This is the general rule which is applied in contributory negligence cases. See Fields v. Kansas City, Mo., 383 S.W.2d 543, 547, and cases The voluntary choice above referred to means one made with freedom of will, with 'more or less deliberation' (8......
  • Zipp v. Gasen's Drug Stores, Inc.
    • United States
    • Missouri Supreme Court
    • 12 Enero 1970
    ...of a party who had not raised a point of error when the case was reversed for error properly raised by another party. Fields v. Kansas City, Mo.Sup., 383 S.W.2d 543, involved consideration of a damage instruction in a case where there had been an obvious error in the reference to the instru......
  • Derboven v. Stockton
    • United States
    • Missouri Court of Appeals
    • 20 Diciembre 1972
    ...reference to the wrong number in the motion for new trial, the error of misnumbering is not sufficient to deny consideration. Fields v. Kansas City, 383 S.W.2d 543 (Mo.Sup. En Banc 1964). Tenaciously, however, plaintiffs assert that even that assumption will not save portions of the argumen......

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