Grove v. City of Kansas

• Decision Date: 31 October 1882
• Citation: 75 Mo. 672
• Parties: GROVE v. THE CITY OF KANSAS, Appellant.
• Court: Missouri Supreme Court

75 Mo. 672

GROVE

v.THE CITY OF KANSAS, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Henry N. Ess for appellant.

Tichenor & Warner for respondent.

RAY, J

The petition in this case was as follows, to-wit: Flaintiff states that defendant is and was, at the dates hereinafter mentioned, a municipal corporation, duly incorporated under the laws of the State of Missouri; that on the 3rd day of February, 1877, while plaintiff was carefully passing on and along the sidewalk on the east side of Main street, between Tenth and Eleventh streets, in defendant's corporate limits, she was thrown upon said sidewalk and into a cellar underneath the same, by reason of the dangerous, unsafe and insecure condition of the trapdoor in said sidewalk; that plaintiff then and there received great and permanent bodily injuries, her wrist being then and there broken and mutilated, and she received other great injuries, and was made sick, sore and lamed and disabled, and she still remains disabled, and has suffered great pain by reason of said injuries; that defendant, well knowing the unsafe, dangerous and insecure condition of said sidewalk, as aforesaid, disregarding its duty, carelessly and negligently suffered and permitted the same to remain in such unsafe, dangerous and insecure condition, well knowing that said sidewalk was a part of said Main street, the same being one of the principal thoroughfares in said city; wherefore, plaintiff says she is damaged in the sum of $5,000, for which sum she asks judgment.

The answer was, 1st, A general denial; 2nd, Contributory negligence by plaintiff. The reply put in issue the new matter set up in the answer.

At the trial, the defendant objected to the introduction of any evidence for the plaintiff, for the reason that the petition did not state facts sufficient to constitute a cause of action, in this, that it is not alleged that the city ever accepted the original dedication of the street at this point, or that it had ever assumed control over the same, in any way whatever. The objection was overruled and duly excepted to, and thereupon plaintiff offered evidence on her part tending to support the petition. The defendant, also, offered evidence on its part tending to disprove it, except, that on the trial it expressly admitted that the sidewalk was constructed in pursuance of an ordinance of the city council, and that Main street, of which said sidewalk formed a part, was a street of the defendant. There was no objection to the instructions given for the plaintiff; and all the instructions asked by the defendant were given, except the first, which was in the nature of a demurrer to the evidence, and is as follows: “The court instructs the jury that there is no evidence of negligence on the part of the defendant, and that the plaintiff cannot recover.” This instruction was refused, and duly excepted to by the defendant. The jury returned a verdict for the plaintiff for $2,700 damages. In due time the defendant filed its motion for a new trial, for the reasons generally stated: That the petition was insufficient, and that no testimony ought to have been admitted; that there was no evidence of negligence; that the first instruction of the defendant ought to have been given; that the verdict was against the law and evidence; that the damages were excessive; and that the jury retired to their room and made and reached a verdict without having with them, for their guidance, the instructions. Pending the motion for a new trial, the plaintiff remitted $700 from the verdict, and thereupon the court overruled the motion and rendered judgment for $2,000, being the amount of the verdict, less the $700 remitted by the plaintiff--to which action of the court the defendant duly excepted and brings the case here by appeal.

The grounds relied on for a reversal of the judgment in this cause, are, 1st, That the petition does not state a cause of action; 2nd, That the first instruction asked by the defendant should have been given; 3rd, That the damages are excessive; and 4th, That the instructions, as given, should have been carried by the jury to their room for a guidance to a correct verdict, according to the law and evidence.

1. PLEADING: practice: jeofails.

On the first point, the case of Bowie v. Kansas City, 51 Mo. 454, (see pages 459, 460, 461 and 462,) and the case of Elfrank v. Seiler, 54 Mo. 134, and the principles and authorities there contained and cited are decisive of this case, and settle the question adversely to the claim of the defendant. The doctrine of these cases, taken together, is, first, that “If a material matter be not expressly averred in the pleadings but is necessarily implied from what is expressly stated therein, the defect is cured by...