Hastey v. Kaime

• Decision Date: 30 July 1927
• Docket Number: 25844,25845
• Parties: Margaret T. Hastey v. George J. Kaime et al., Appellants
• Court: Missouri Supreme Court

297 S.W. 50

317 Mo. 1010

Margaret T. Hastey v. George J. Kaime et al., Appellants

Nos. 25844, 25845

Supreme Court of Missouri

July 30, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Affirmed.

Bartley & Mayfield for appellant Serena Alexander.

(1) The demurrer of this defendant offered at the close of plaintiff's case, and renewed at the close of the whole case, should have been sustained. (a) It was incumbent upon plaintiff to both plead and prove specific negligence against defendant Alexander. No negligence was shown against her. Carpenter v. Hines, 239 S.W. 593; Ryan v McCully, 123 Mo. 636; Lee v. Jones, 181 Mo 291; Murphy v. Mack, 239 S.W. 595; Johnston v Kansas City, 243 S.W. 265; Muser v. Kansas City, 249 S.W. 681; Wren v. Suburban M. T. Co., 241 S.W. 464. And plaintiff must recover on the cause of action in her petition or not at all. Duncan v. Gage, 250 S.W. 647; Jennings v. Cherry, 257 S.W. 438; Mo. Pac. Railroad v. Clark, 268 S.W. 97. (b) The evidence shows plaintiff was guilty of contributory negligence as a matter of law and the court should have so declared. Coffey v. City of Carthage, 186 Mo. 573; Wheat v. St. Louis, 179 Mo. 572; Jackson v. Kansas City, 106 Mo.App. 52; Ryan v. Kansas City, 232 Mo. 471; Hanke v. City of St. Louis, 272 S.W. 933. (2) Witness Mays should have been permitted to state the place was light enough to see. A witness may give his opinion as to light. Jones on Evidence (3 Ed.) sec. 360; Com. v. Sturtivant, 117 Mass. 133; Bass Co. v. Glasscock, 82 Ala. 452; Filley v. Billings, 26 Neb. 537; Gallatin v. Corning Irr. Co., 163 Cal. 405; Critanvitch v. Bomberg, 169 Iowa 736. (3) Instruction 1 is erroneous. Instructions must be within the scope of the issues raised by the pleadings, and must also be based upon the evidence. Muser v. Kansas City, 249 S.W. 681; Lairson v. Rys. Co., 232 S.W. 484; Wagner v. Railroad Co., 232 S.W. 771; Pildner v. Shaw Marble Co., 239 S.W. 1095; Vance v. Anderson, 255 S.W. 322; State ex rel. v. Melton, 251 S.W. 447; Young v. Dunlap, 190 S.W. 104. (4) The statements made in the closing argument of counsel for plaintiff should not have been permitted to stand. Jackman v. Ry. Co., 206 S.W. 244. (5) After setting aside and vacating the judgment entered in behalf of the plaintiff, the court could not enter a new judgment of its own motion different from the original judgment entered. Warren v. Order of Ry. Cond. Am., 201 S.W. 368; Reid v. Moulton, 210 S.W. 34.

Julius T. Muench and Charles J. Dolan for appellant City of St. Louis.

(1) The city of St. Louis is not to be charged with negligence because of the dangerous condition of a sidewalk unless it had notice of the danger, or unless it existed for a sufficient length of time to justify the inference that the city knew of the danger, or by reasonable diligence could have acquired such knowledge in time to have taken reasonable precautions against such danger. McKissick v. St. Louis, 154 Mo. 595; Cooper v. City of Caruthersville, 264 S.W. 48. (2) If a coal hole opening in a sidewalk is safe when the door is closed, and if it is habitually kept closed, the city is justified in assuming that the person in charge of such opening will exercise reasonable care for the safety of others when opening it, and is not bound to surround it with a guardrail. The city is not bound to anticipate the negligent act of a third party. Fehlhauer v. St. Louis, 178 Mo. 635; City of Lafayette v. Blood, 40 Ind. 62; Parmenter v. City of Marion, 85 N.W. 90. (3) The city cannot be charged with liability to respondent unless the city knew, or by the exercise of ordinary care could have known, that the coal hole in question was open and unguarded at the time when respondent fell therein. Fehlhauer v. St. Louis, 178 Mo. 649. (4) Instruction 2, which assumed that it was the duty of the city of St. Louis to place a guard around the coal hole in question, was erroneous. Campbell v. City of Stanberry, 85 Mo.App. 164; 47 L. R. A. (N. S.) 1199 (case note). (5) The use of the word "dangerous" in Instruction 2 had a tendency to mislead the jury regarding the liability of the city. Cooper v. City of Caruthersville, 264 S.W. 49. (6) No action can be maintained against the city unless notice thereof has been given in writing to the mayor, in accordance with the provisions of Sec. 8904, R. S. 1919. The provisions of this section are mandatory. Carter v. St. Joseph, 152 Mo.App. 503; Krucker v. St. Louis, 195 Mo.App. 101; Hackenyos v. St. Louis, 203 S.W. 986. The petition itself is sufficient notice, if served on the mayor within the statutory period of ninety days, provided that it sets forth the information required by the statute. In the instant case, an amended petition was filed more than three years after the date of the injury complained of, and the case was tried upon the amended petition. In such case, it is necessary for the plaintiff to offer in evidence the original petition in order that the court may determine whether or not it is in compliance with the statute. Wolf v. Kansas City, 246 S.W. 236.

Hay & Flanagan and Edwin D. Franey for respondent.

(1) The charge that defendant, Serena Alexander, negligently left the coal hole open and unguarded was clearly set forth in the petition, supported by substantial testimony, and submitted to the jury by plaintiff's Instruction 1 and defendant's Instruction 9. Defendant having requested the submission of this issue to the jury, is not now in a position to say that there was no evidence to support it. Crum v. Crum, 231 Mo. 626; State ex rel. v. Allen, 308 Mo. 487; Torrance v. Pryor, 210 S.W. 430. (2) Plaintiff was not guilty of contributory negligence as a matter of law. Wheat v. St. Louis, 179 Mo. 572; Bentley v. Hat Co., 144 Mo.App. 612; Coffey v. City of Carthage, 186 Mo. 573; Heather v. City of Palmyra, 245 S.W. 390. (3) Defendant is in no position to complain of the action of the court in sustaining the objection of plaintiff to the question relating to the coal hole being lighted, for the reason that the testimony which counsel sought to elicit by the question to which objection was sustained had already been given, and for the further reason that defendant in her motion for a new trial does not specify the evidence which it is claimed should have been admitted. Bartner v. Darst, 285 S.W. 449; Robinson v. Railroad, 288 S.W. 109. (4) The argument of counsel was entirely proper. (5) The judgment was entered in accordance with the established and uniform practice in cases in which a remittitur is made, but if the entries were technically incorrect, defendant is in no position to complain. R. S. 1919, sec. 1550, subdiv. 13; sec. 1531. (6) It was negligence as a matter of law for the city to permit a coal hole four feet square, eight or ten feet deep, in a much traveled sidewalk, to be open and unguarded frequently and habitually, covering a long period of time prior to and including the date of plaintiff's injury. Fullerton v. Fordyce, 144 Mo. 519. There was substantial evidence that the coal hole was left open and unguarded frequently and habitually for a long time prior to the date of plaintiff's injury and that it was left so on the occasion of plaintiff's injury. (7) Whether it was left open and unguarded was an issue for the jury which was submitted by plaintiff's Instruction 2 and defendant's Instruction 16. The defendant, having requested the submission of this issue to the jury, is now estopped to assert that there was no evidence to support it. Crum v. Crum, 231 Mo. 626; State ex rel. v. Allen, 308 Mo. 487; Torrance v. Pryor, 210 S.W. 430. (8) In 1927, almost eight years after the petition was filed, the city for the first time suggests or even intimates that there was any question about the notice of plaintiff's claim. It was not contended on the trial and is not contended now that plaintiff made any claim in the amended petition which is not made in the original petition. The city requested full instructions on the merits of the claim. It suggested no question about the notice in the motion for a new trial. The city should be held to be estopped from questioning the notice now. Crum v. Crum, 231 Mo. 626.

OPINION

Gantt, J.

This is an action for personal injuries against the city of St. Louis and the owners and lessee of the property adjacent to that part of the sidewalk where plaintiff alleged she had fallen into a coal hole and was injured.

The petition charged the defendants with the maintenance of a nuisance and with negligently and carelessly failing to provide a railing or guard around the coal hole when open. The answer of the defendant owners was a general denial, and the answers of the city of St. Louis and Serena Alexander, the lessee, were general denials, with a charge of contributory negligence. The case was tried as if the reply was a general denial. At the close of plaintiff's case, a verdict was directed for the owners of the property. On submission of the case to the jury, a verdict of three thousand dollars was returned against the other defendants. Defendants filed motions for a new trial and in arrest of judgment. The court made an order requiring the plaintiff to enter a remittitur of fifty dollars within ten days; otherwise, the motions would be sustained. Plaintiff entered said remittitur, and the judgment for three thousand dollars was set aside and judgment for $ 2950 entered on the verdict. Defendants appealed.

At the time of respondent's injury, on the 17th of October 1919, a saloon and restaurant was conducted on the first floor of the building at the southwest corner of Grand Avenue and Enright Street in the city of St. Louis. The building faces Grand Avenue, with the saloon in the front room and the restaurant in the rear room,...