Haniford v. City of Kansas

• Decision Date: 02 February 1891
• Citation: 103 Mo. 172,15 S.W. 753
• Parties: HANIFORD v. CITY OF KANSAS.
• Court: Missouri Supreme Court

15 S.W. 753

103 Mo. 172

HANIFORD v. CITY OF KANSAS.

Supreme Court of Missouri, Division No. 1.

February 2, 1891.

EXCAVATIONS IN STREET — LIABILITY OF CITY — REVIEW ON APPEAL — EXCESSIVE DAMAGES.

1. A city having authorized a cable railway company to make excavations in its streets, which the company does, through an independent contractor, it is the duty of the city to see that the excavations are properly lighted and guarded, and notice of the defect in the street is not necessary, in such case, to fix the city's liability.

2. The instructions given having required the jury to find, as essential to a verdict for the plaintiff, that he fell into the excavation made by the cable company, there is no error in refusing to charge that he could not recover if the excavation into which he fell was not the one made by the cable company, but another, which had been made by a firm of plumbers.

3. Rev. St. Mo. 1889, § 2302, providing that "no exceptions shall be taken in any appeal or writ of error to the circuit court, except such as shall have been expressly decided by such court," this court cannot pass on a ruling of the trial court, directing a verdict for one of several defendants, no exception to the ruling having been noticed.

4. There is no prejudicial error in a charge that, if the jury found for the plaintiff, they should assess his damages at such a sum as they believed from the evidence to be a fair and reasonable compensation for his injuries, including his physicial pain and suffering and mental anguish, and the permanent injury sustained, if any.

5. The plaintiff went on crutches for four months after the accident, and was unable to attend to his business for seven months. When he stands up for more than three hours, his ankle swells, and becomes feeble and painful. He suffers great pain, and is often obliged to take opiates to induce sleep. A physician testified that the injury would be more or less permanent. Held, that a verdict for $3,500 should not be disturbed.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Plaintiff's action is for personal injuries sustained one night in December, 1886, in consequence of a fall into an excavation in one of the public thoroughfares of defendant, which the latter negligently permitted to remain open, unguarded, unlighted, and dangerous to persons using the street. Defendant answered by a general denial, and a plea of plaintiff's contributory negligence, to which there was a general reply. The action originally proceeded against the present defendant and the Metropolitan Street-Railway Company, by which company the alleged excavation was said to have been made under authority from the city. At the trial, however, when the evidence closed, the court instructed the jury that the plaintiff could not recover against the street-railway company, and accordingly a finding and judgment in favor of that defendant ensued, as well as a verdict for plaintiff against the city for $3,500. The other instructions of the court were as follows: For plaintiff: "No. 1. If the jury believe from the evidence that on or about the 19th day of December, 1886, the defendant the Metropolitan Street-Railway Company, under and by virtue of a franchise granted to it or to the Corrigan Consolidated Railway Company by the defendant the City of Kansas, and transferred to it by purchase or otherwise, made in Ninth street, between Wyoming and Bell streets, in the City of Kansas, an excavation, and that said excavation, at or about that time, was carelessly and negligently left unlighted, and without guards or railings or danger signals, and the plaintiff, while attempting to pass along said street in the night, without fault on his part, fell into said excavation, and was injured, then you should find for the plaintiff against the defendant the City of Kansas. No. 2. If you find for plaintiff, you will assess his damages at such sum as you believe, from the evidence, is a fair and reasonable compensation for his injuries, received by means of falling into said excavation, including his physical pain and suffering and mental anguish, including permanent injury sustained, if you believe his injuries are permanent, not exceeding ten thousand dollars." For defendant: "No. 1. If the plaintiff knew, or might by the exercise of ordinary care at the time have known, of the condition of Ninth street, where he alleges he was injured, and yet took upon himself to pass along the street, when by the exercise of ordinary care and prudence he could have avoided any trench or excavation in said street, then your verdict must be for the defendant the City of Kansas. No. 2. If the plaintiff was himself guilty of any carelessness or negligence that directly contributed to any injury which you may believe from the evidence he received by falling into the excavation in said Ninth street, then your verdict must be for the defendant the City of Kansas; and, for the purpose of determining whether or not the plaintiff was guilty of such carelessness and negligence, you may take into consideration the time of the day, and all the circumstances of the case. By the carelessness or negligence referred to on the part of the plaintiff is meant an absence of ordinary care on his part, or such care as an ordinarily prudent or careful person would have exercised under the same or similar circumstances." The plaintiff's own evidence in regard to the nature and extent of his injuries was that he had to be carried home; was on crutches four months; was not able to attend to his business for seven months, and had not been in good health since the accident; that when he stands up for more than three hours at a time his ankle swells, and becomes feeble and painful; that he suffered great pain, and had been obliged to take opiates to induce sleep. The physician who treated him for the injury was absent in New York at the time of the trial, but another (who was called to examine plaintiff as an expert, with a view to giving medical evidence) testified that he "found the ankle very much swollen, especially on the external side, and the evidence of effusion of blood, blackness and blueness on the outside of the ankle, and around...