Haxton v. Kansas City
| Decision Date | 20 June 1905 |
| Citation | 88 S.W. 714,190 Mo. 53 |
| Parties | HAXTON v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Benton Circuit Court. -- Hon. W. W. Graves, Judge.
Affirmed.
R. J Ingraham, J. G. L. Harvey and L. E. Durham for appellant.
(1) Appellant's demurrer to the evidence should have been sustained. (a) There is no proof that the place in question was a public street of the city. Downend v. Kansas City, 156 Mo. 60. (b) Even if it was a public street the undisputed evidence shows that there was a perfectly safe sidewalk and crossing, at the proper and ordinary place, and within a few feet of the place where the plaintiff desired to cross. She voluntarily chose to cross at an irregular place. The city had not put that part of the street into use for pedestrians. Its condition was manifest and spoke for itself. Ely v. City, 81 S.W. 168; Oliver v. Denver, 13 Col. App. 345; Dougherty v. Harshheads, 159 N.Y 154; Macomber v. Taunton, 100 Mass. 255; Holding v. St. Joseph, 92 Mo.App. 143. (c) Plaintiff was guilty of contributory negligence. Holding v. City, 92 Mo.App. 143; Wheat v. St. Louis, 179 Mo. 572. (2) The court erred in giving instruction 1 for plaintiff. By this instruction, a recovery was permitted for future pain and suffering, without requiring the jury to find the injury to be permanent. And in this respect said instruction is not confined to the evidence in that it alleges injuries, whether set up in the petition or not. 1 Joyce on Damages, par. 245; Smiley v. Railroad, 160 Mo. 629; Girdes v. Iron Co., 124 Mo. 361; Batten v. Iron Co., 102 Mo.App. 285; Albin v. Railroad, 103 Mo.App. 318; Bigelow v. Railroad, 48 Mo.App. 367. (3) Instruction 2, given for plaintiff, was improper. (a) Plaintiff was not injured upon a sidewalk, or crossing. On the contrary, she claimed to have been injured at a point beyond the sidewalk, and not upon the crossing. Therefore, this reference to the duty to keep the sidewalk and crossing in repair was calculated to give the jury the impression that the court, as a matter of law, meant to declare the place where she fell to be within the terms "sidewalk and crossing." It was misleading. There was nothing in the pleadings or evidence to warrant it. Ely v. St. Louis, supra; Stanley v. Railroad, 114 Mo. 606; Hurt v. Railroad, 94 Mo. 255; Arnold v. Ins. Co., 55 Mo.App. 149; Fisher v. Central Lead Co., 156 Mo. 479. (b) The knowledge which plaintiff confessed she had, of the surroundings, made all reference to the "right to presume that it was safe" wholly improper, and tended to take away from the city the right it had to have the jury consider her knowledge of the surroundings in determining the issue of contributory negligence. Lynch v. Railroad, 112 Mo. 432; Payne v. Railroad, 129 Mo. 419; Bailey v. Railroad, 152 Mo. 461; Schepers v. Railroad, 126 Mo. 670; Rapp v. Railroad, 106 Mo. 428; Nixon v. Railroad, 98 Mo. 186; Brannock v. Elmore, 114 Mo. 64.
Henry J. Latshaw, Jr., for respondent.
(1) The evidence shows conclusively that plaintiff was crossing at the usual and ordinary place and at the only crossing there was or ever had been on the north side of Ninth street, crossing Jefferson. (2) That part of the street was in use, and had been for twenty years for pedestrians, and these very stones had been laid there as stepping stones for public use for at least a year. (3) Whether or not respondent was guilty of contributory negligence was, under the facts in this case, clearly a question for the jury, and they were properly instructed upon that issue. That the place where plaintiff was crossing when she fell was the usual and ordinary place, and in fact the only place for people to cross at that point, is clearly established. There is no evidence in this case that plaintiff could, by the exercise of ordinary care, have discovered that the hole was there, or that the gas pipe was sticking up from the bottom of said hole, or that the stepping stones were insecure. (4) It is quite evident that plaintiff might suffer future pain, say, for months or for years, on account of said injuries, and still not suffer said pain permanently, viz., during her entire life. Plaintiff surely, under the law, is not precluded from recovering from future pain merely because said pain will not be permanent. (5) Appellant claims that the instruction assumes plaintiff was injured "on a sidewalk and crossing," and that it is therefore misleading. The objection of appellant is not well taken, for the reason that the duty of the city is the same in relation to holes and dangerous places adjacent to and near its sidewalks, streets and crossings as it is in regard to the sidewalks, streets and crossings themselves. Bassett v. St. Joseph, 53 Mo. 290; Kiley v. Kansas City, 87 Mo. 103; Quinlan v. Kansas City, 78 S.W. 660; Grogan v. Foundry Co. and St. Louis, 87 Mo. 321; Frank v. St. Louis, 110 Mo. 516; Wiggins v. St. Louis, 135 Mo. 558; O'Neill v. Kansas City, 77 S.W. 64; Campbell v. City, 78 S.W. 292; Perrette v. Kansas City, 162 Mo. 248.
This is an action against Kansas City for damages resulting from personal injuries received by the plaintiff June 19, 1900, by falling into a hole at the northwest corner of Ninth and Jefferson streets in Kansas City, Missouri, and striking the small of her back against the end of an iron gas pipe extending up from the bottom of said hole, and by a severe sprain of her left ankle, by reason of the turning of a stepping stone and the rolling of the same upon her said ankle. The petition charges that the city negligently maintained this hole in said street; that it neglectfully maintained said stepping stones near said hole; that it negligently permitted weeds to grow about that hole and these stones which obscured both, and that it negligently failed to maintain barriers around the hole and stones. There was a prayer for judgment for five thousand dollars for said damages.
The answer of the defendant is a general denial and a plea of contributory negligence. The reply denies all new matter.
On the application of the plaintiff a change of venue was granted on the ground of the undue influence of the defendant over the minds of the judges of the Jackson County Circuit Court, to Benton county, Missouri. The cause was tried on the 13th of December, 1902, in the Benton County Circuit Court, and a verdict of five thousand dollars rendered in favor of plaintiff. Motions for new trial and in arrest of judgment were filed and overruled, and time given to file a bill of exceptions, and in accordance with the leave granted, a bill of exceptions was filed on the 6th of May, 1902.
The evidence tends to show that the plaintiff is a lady of Welsh descent; she had been married, and had a young son about ten years old, but she was divorced from her husband for his fault previous to the receiving of the injuries for which she sues; she supported herself by taking in washing and kept a few boarders. About seven o'clock in the afternoon of July 19, 1900, plaintiff was sitting on the front porch of her home, 903 Jefferson street, when she saw her young son going north on the west side of Jefferson near Ninth carrying a basket of clothes, which appeared to be too heavy for him and she started to his assistance. She went north on the east side of Jefferson street, her home being on that side, to the north side of Ninth street, and crossed west over Jefferson street. As plaintiff went to the assistance of her son, she stepped over the curbing on to a space between the sidewalk and the curb on the west side of Jefferson street just north of Ninth street, that is, near the northwest corner of Ninth and Jefferson streets. Jefferson street runs north and south, and Ninth street runs east and west, crossing Jefferson street. In this space there had been some stones which the evidence tends to show had been arranged for stepping stones to allow pedestrians to pass over the curbing to the sidewalk. The plaintiff stepped on one of these stones, which turned with her and threw her on her back, which struck upon a projecting gas pipe which had been left there when the gas post was moved. This space on the sides of these stepping stones and at this projecting gas pipe was covered at that time with weeds. The evidence shows that these stones had been arranged for ten months to a year prior to the time plaintiff fell. About five or six months before plaintiff fell, the lamp post had been moved from the place where this gas pipe stuck up to the position it occupied at the time plaintiff fell. At the time plaintiff fell it appears that Jefferson street was being paved by the city with asphaltum, and the crossing had been removed for that purpose. The testimony on behalf of the plaintiff tended to show also that these stepping stones were on a direct line with the end of the sidewalk on the north side of Ninth street and the west side of Jefferson street. The curbing around the hole into which plaintiff fell had been put in by the defendant city through its superintendent of curbing and sidewalks, Thomas F. Callahan, in the year 1892, and was the "regular shoulder four feet corner." At the time plaintiff was injured, both Ninth and Jefferson streets were public, and among the principal thoroughfares of the city, and had been for at least twenty years. Both streets at this point were sidewalked on both sides, and had gas and sewers on them. The principal cable road of Kansas City ran over the hill on Ninth street to the Union Station, and crossed Jefferson street at this corner within a short distance from where plaintiff fell. Jefferson street is the first street on the top of the hill over the incline from the Union Station. When the stepping stone turned with the plaintiff she fell and the...
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