O'Gorman v. Kansas City, Mo.

• Citation: 93 S.W.2d 1132
• Decision Date: 06 April 1936
• Docket Number: No. 18526.,18526.
• Parties: KATHERINE O'GORMAN, RESPONDENT, v. KANSAS CITY, MO., APPELLANT.
• Court: Court of Appeal of Missouri (US)

93 S.W.2d 1132

KATHERINE O'GORMAN, RESPONDENT, v. KANSAS CITY, MO., APPELLANT.

No. 18526.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from the Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Cope & Hadsell and Roy W. Rucker for respondent.

The demurrer offered by appellant was properly denied. Bayne v. Kansas City, 263 S.W. 451; Id., 253 S.W. 116; Rickards v. Kansas City, 168 S.W. 845; Drake v. Kansas City, 88 S.W. 689; Buckley v. Kansas City, 68 S.W. 1069, l.c. 1071. The court did not err in refusing to permit the so-called expert to give an opinion as to the effect of rust on cast iron. Homan v. Missouri Pacific Railroad Co., 64 S.W. (2d) 617, l.c. 624. The court did not err in refusing to discharge the jury because of statements made by respondent's counsel. It is perfectly apparent that nothing said by respondent's counsel tended to inflame or prejudice the jury.

Marcy K. Brown, Jr., and Francis L. Roach for appellant.

(1) The court erred in overruling appellant's request for peremptory instruction in the nature of a demurrer to the evidence at the close of respondent's evidence and at the close of all the evidence, because the defect was a latent one and there is no evidence of notice to the city, either actual or constructive, of its existence. Carvin v. City of St. Louis et al., 151 Mo. 334; Cooper v. The City of Milwaukee, 98 Wis. 458; Baustian v. Young et al., 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Berberet v. Electric Park Amusement Company, 319 Mo. 275; Fehlhauer v. St. Louis, 178 Mo. 635; Brown v. Mt. Holly, 69 Vt. 364, 38 Atl. 69; Hanscom v. Boston, 141 Mass. 242; Miller v. North Adams, 182 Mass. 569; Burns v. Bradford. 137 Pa. 361; Lohr v. Philipsburg, 165 Pa. 109, 30 Atl. 822; Cook v. Anamosa, 66 Iowa 427, 23 N.W. 907; Powell v. Bowen, 92 Ill. App. 453; Ward v. Jefferson, 24 Wis. 342; Columbus v. Anglin, 120 Ga. 785, 48 S.E. 318; Bell v. Henderson, 24 Ky. L. Rep. 2434, 74 S.W. 206; Poole v. Jackson, 93 Tenn. 62, 23 S.W. 57; Wakeham v. St. Clair Twp., 91 Mich. 15, 51 N.W. 696; Hembling v. Grand Rapids, 99 Mich. 292, 58 N.W. 310. (2) The court erred in refusing to permit witness Armstrong to testify as to the liability of a catch-basin rusting so that the lid did not fit. Buckley v. Kansas City, 156 Mo. 16; Aurora v. Insurance Company, 180 Mo. App. 263, l.c. 269; Benjamin v. Street Railway Company, 50 Mo. App. 602; Ridenour v. Mines Company, 164 Mo. App. 576; Obermeyer v. Manufacturing Company, 120 Mo. App. 59; Spencer v. Bruner, 126 Mo. App. 94; Bowen v. Lumber Company (Col.), 84 Pac. 1010; Bridge Company v. Steel Company, 226 Fed. 169; Rice v. County (Ore.), 81 Pac. 358. (3) The court erred in refusing to reprimand respondent's counsel and in refusing to withdraw prejudicial and inflammatory remarks from the consideration of the jury and in refusing to discharge the jury because of such prejudicial and inflammatory remarks. Haynes v. Trenton, 108 Mo. 123; Ritter v. Bank, 87 Mo. 574; O'Donnell v. McElroy, 157 Mo. App. l.c. 548; Monroe v. Railroad, 297 Mo. 633; Smith v. Railway (Mo. App.), 31 S.W. (2d) 105; Jackman v. Railway Company (Mo. App.), 206 S.W. 244; Mahner v. Linck, 70 Mo. App. 380; Kull v. Motor Company (Mo. App.), 261 S.W. 734; O'Hara v. Construction Company (Mo. App.), 197 S.W. 163.

REYNOLDS, J.

This is an action for personal injuries by Katherine O'Gorman, who was at the time of the institution of this suit a minor, through her mother, Maude O'Gorman, as next friend, arising from an accident on July 28, 1933, when she stepped on a catch-basin cover located in the sidewalk at the southeast corner of Fifty-ninth and Main Streets in Kansas City, Missouri. Since the institution of the suit, she has reached her majority. From an adverse judgment in her favor, in the sum of $3500, the defendant appeals.

The negligence alleged is that, on July 28, 1933, and for a long time prior thereto, the defendant city negligently and carelessly permitted the cover or lid to the catch-basin or manhole, upon which plaintiff stepped, to become worn, loose, ill-fitting, too small, slick, and slippery, so that upon pressure or under tread it would slide, tilt, give way, and slip from its setting, thereby rendering it dangerous to pedestrians and negligently and carelessly permitting it to remain in such condition for a sufficient length of time prior to the accident that it could, in the exercise of ordinary care, have discovered such dangerous condition and have replaced or repaired it prior to the accident and that it negligently failed to warn plaintiff by any sign or otherwise of the dangerous and defective condition of such over.

The answer of the defendant is a general denial.

Upon a trial before a jury, the defendant, at the close of the plaintiff's evidence and again at the close of the whole evidence, requested instructions in the nature of demurrers to the evidence directing a verdict for the defendant, which requested instructions were by the court refused. The cause being submitted to the jury, the jury returned a verdict for the plaintiff in the sum of $3500, upon which verdict the judgment noted herein as having been appealed from was entered. After unsuccessful motions for new trial and in arrest of judgment, the defendant prosecutes this appeal.

There is evidence in the record tending to show that, at the time of the trial, the plaintiff was twenty-one years of age and, at such time, resided in Tulsa, Oklahoma; that, on July 28, 1933, she was living at 417 West 67th Street, Kansas City, Missouri; that, on said date, she was riding in a car driven by one Miss Banks and stopped at the Crown Drug Store at Fifty-ninth and Main Streets, at the corner where the catch-basin in question is maintained by defendant; that she alighted from the car and went into the drug store; that, when she came out of the drug store, she approached the car on the side next to the catch-basin or manhole and, while going to the car, stepped on the cover over the catch-basin or manhole with her right foot and, as she started to bring her left foot up, the cover tilted and shoved entirely away from the manhole or catch-basin and let her fall into the manhole to her hips, skinning her right leg and ankle and twisting the upper part of her leg as she went down; that her back was wrenched and scratched, and blood was running from bruises on her right leg when she got up, and she had a sick feeling; that the wounds wee bandaged, and she went to a sororiety meeting where she remained about forty-five minutes and left by reason of becoming sick from her injuries; that she was taken home by friends; that she was confined to her bed for several weeks under the care of physicians; that she suffered much pain and still suffered at the time of the trial; that she sustained permanent injuries of a serious character; that the accident happened about 1:45 P.M.; and that the day was bright and sunshiny. She testified that, at the time she stepped on the catch-basin or manhole, she was paying attention to where she was walking but was not giving any attention to the catch-basin or manhole.

There was evidence tending to show that the catch-basin or manhole cover did not fit closely; that it had a play of one-half to three-quarters of an inch on the surface upon which it rested in which to slide back and forth; that the flange upon which it rested was much narrower on one side than on the other; that, when stepped upon, the cover would tilt and slide completely off of the manhole; that the rim or flange had become rusted and corroded and had practically worn away.

The evidence was conflicting as to surface conditions and appearances. There was evidence elicited by defendant tending to show that the cover lay level on the steel plate upon which it rested and that the top of it was flush with the adjacent sidewalk which was level and had an even surface and that there was nothing to indicate, by merely looking at it, that it was defective and dangerous or that anything was wrong with it. There was also evidence to the contrary — that it did not appear to fit; that it was loose and too small and had too much play; that it wobbled; and that it did not look right and did not appear to be secure. This latter condition was testified to by witnesses, some of whom had observed it over a period of four years and more. There was evidence to the effect that, when the cover was on, it was not apparent to any one that the flange had rusted; that, in cases where a cover slips, something is wrong; that the manhole had been in use for several years (just how long, however, does not appear); and that it had never been repaired. There was evidence by the defendant to the effect that the lid was tight-fitting and not too loose and that it did not tilt when properly placed.

The evidence tends to show that the corner at which this manhole or catch-basin was located was a particularly busy corner, over which many people passed during the day, and that the city had employed inspectors whose duty it was to make frequent inspections of manhole covers at such corners to ascertain their conditions and also to see whether they were loose or rusty. There was no evidence that the cover on the manhole had ever been repaired or that, prior to plaintiff's injury, any complaint had ever been made to the defendant city concerning its condition.

There is no question raised on this appeal as to the excessiveness of the verdict; and it is, therefore, unnecessary to set out the evidence regarding the nature, extent, and character of the plaintiff's injuries more fully than has been done, other than to say that the evidence in the record sufficiently supports the allegations of the petition as to such injuries.

OPINION.

1. The defendant complains of the refusal of the demurrers requested by it.

Its sole contention under said complaint appears to be that the defect in the catch-basin cover was a...