Henson v. Kansas City

• Decision Date: 04 March 1919
• Docket Number: No. 19512.,19512.
• Citation: 210 S.W. 13,277 Mo. 443
• Parties: HENSON v. KANSAS CITY.
• Court: Missouri Supreme Court

210 S.W. 13

277 Mo. 443

HENSON v. KANSAS CITY.

No. 19512.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Motion for Rehearing and to Transfer to Court in Banc Overruled March 17, 1919.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Katherine Henson against Kansas City. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

E. M. Harber and Francis M. Hayward, both of Kansas City, for appellant.

Piatt & Marks, of Kansas City, for respondent.

FARIS, J.

Plaintiff sued defendant for personal injuries accruing to her, it is averred, from defendant's negligence. On a trial had before a jury she had judgment for damages in the sum of $20,000, and therefrom defendant appealed in due and ancient form.

The salient facts are few and simple; while the details may to an extent be left for statement in connection with the discussion of the points urged for reversal. The outstanding facts run thus: Defendant pursuant to solemn ordinance had by contract caused to be graded a street called Forty-Ninth street, where this street traverses an addition known as "Prospect Hill Addition." This grading was completed in October, 1914, some six weeks or two months before plaintiff was injured, on December 14, 1914. In grading this street pursuant to the plans adopted and carried out by the defendant, a uniform cut was made the width of the whole street, including the sidewalk space, to the property line, so that when the grading was done there were left along the property line perpendicular banks or walls of earth, or clay from 10 to 12 feet high. A wagon-way 26 feet wide had been improved at the point of the injury on Forty-Ninth street, for vehicular traffic, though the sidewalks had not been made. Spaces on both sides of the street called "sidewalk spaces" in the record, and which were each 17 feet wide, had been left. These sidewalk spaces were at the time of plaintiff's injury being used by pedestrians living in the vicinage to go to and from their homes, to work, to the street car lines, and to stores in the neighborhood, whereby a path was trodden out. Prior to the time of plaintiff's injury a part of this perpendicular clay wall had caved off and fallen across the sidewalk space and across the path made by pedestrians and above mentioned, at a point thereon only a few feet from the place whereat plaintiff was hurt.

Plaintiff, a young woman 19 years of age, then working for a real estate concern in a minor clerical capacity at a salary of $6 a week, had gone to a point on Forty-Ninth street between Prospect avenue and Wabash avenue to chaperon her sister, who with other young persons had resorted to this part of Forty-Ninth street to coast on sleds thereon. There was another party of young folks there also coasting. The night was cold—Only three degrees above zero—and some of the latter party had made a fire on the sidewalk space for the purpose of warming. In the making of this fire plaintiff had no part. The size and location of the fire were disputed questions, since the chief defense of the city upon the facts is that this fire thawed the frozen clay bank and caused it to fall. The evidence of plaintiff tends to prove that this fire was about a foot in diameter and a foot or a foot and a half in height; that it was from 3 to 5 feet distant from the perpendicular wall of the cut, and of negligible intensity. The defendant's evidence tends to show that it was from a foot to 3 feet and 7 inches from the wall (the city's measurements showed 3.6 feet, exactly) and that it was some 2 feet in height and 20 inches in diameter, and of such heat and intensity as to convert the clay of the wall which fell into burnt clay of a bricklike hardness and consistency.

Plaintiff, just a few seconds before she was hurt, had been in the middle of the street with a sled for her young sister. After delivering this sled to the sister she stepped back on to the sidewalk space near the fire for the purpose of warming, or of observing her sister and the other young people while they were coasting. Almost instantly thereafter a frozen section of the clay wall caved and fell and struck plaintiff, hurling her to the ground and breaking her right leg in two places. The upper fracture was a comminuted fracture of the femur near the hip, and the lower consisted in fractures of both bones near the ankle. It is averred that the muscular tissues of both legs was seriously crushed and bruised, and the testimony tends to sustain this averment.

Plaintiff was confined in a hospital for some seven weeks as a result of the injuries she sustained, and thereafter was confined to her bed at her home for some 10 or 11 weeks. Her right leg was permanently shortened an inch and a half, and other conditions appeared which were nervous in character, and which are averred to be incidents of shock and nerve injury and to be permanent. There was as stated some crushing, or mashing and bruising of the fibers of the muscles of both legs, which the evidence tends to prove has (at least till an operation shall correct it) permanently affected movements in certain ways of both of plaintiff's legs, and causes her, and will continue to cause her, to limp. Upon the question of whether the nervous condition was permanent the medical experts were dubitante. It was agreed by the expert testimony, as we read it, that the shortening of the right leg would cause a permanent limp, which, however, might be largely taken care of by the adjustments in the bones of the pelvis, at the expense of some slight distortion of the spine in the adjustment process. On this single phase of injury to the right leg the medical expert for defendant said that "there ought not to be anything more than a little limp, possibly not that."

Some further facts will be found set out in the course of the expression of our views upon the divers contentions of error urged.

I. We are met with a motion by respondent to strike the brief of appellant from the files, for that it contains as exhibits thereto three certain affidavits purporting to set forth the physical status and condition of plaintiff, as of a date long subsequent to the trial and the taking of this appeal. This motion, coming in too near the day of argument to allow time for careful consideration, was by us taken with the case. Meeting it therefore on the threshold of the case, we must needs dispose of it before reaching the merits.

It is so plain that we may not consider affidavits filed here in an action at law after the appeal is taken, when such affidavits contradict the solemn evidence upon which the verdict was rendered, that neither authority nor exposition is necessary to bolster up the assertion. Lately, in a case more flagrant by far than that made by the showing in the instant case, and one in which the extrajudicial showing of conditions subsequent to appeal were presented formally in a common-law proceeding and not ex parte as here, we refused to be bound thereby in the case appealed. Callicotte v. Railroad, 204 S. W. 528, not yet officially reported. We therefore refuse to consider the affidavits filed, and content ourselves with striking them from the files. But, we overrule the motion to strike the brief of defendant from the files, since there is nothing to indicate that the objectionable matter therein contained was interpolated in any other spirit than that of bringing about counsel's conception of the doing of justice in the case. Counsel's client ought not to be penalized on account of counsel's making every effort consistent with honesty and a proper respect for the courts to protect their client's interests and obviate what they may honestly deem to be a gross miscarriage of justice. That counsel may in doing so, and hi an effort to prevent justice from becoming "a hissing and a by-word," sometimes go out of the beaten paths which justice now treads is not to their discredit.

Neither, on the other hand, are we saying that if we could consider these affidavits they show any fraudulent overreaching of the courts. They do not necessarily comport any such thing. They would merely—even if they be true—tend to show the ordinary errors in prophecies of future physical conditions, due to mistaken expert evidence and to the psychological phases of the situation presented.

II. Coming to the strenuously urged contention of defendant that plaintiff made out no case for the jury, and that the demurrer of the city to the evidence ought to have been sustained, we meet a close and difficult question. As we understand defendant's several contentions upon this point, they are: (a) That the falling of the wall or bank of the cut or excavation was due to a defect in the plan of the work, and not to any negligent or defective execution of the work itself, which per contra was done precisely according to the plan; (b) that plaintiff, in standing by a fire built by other persons in violation of the city ordinances, was doing an unlawful act, and therefore cannot recover; and (c) that, the danger of the clay bank's falling being equally as apparent to plaintiff as it was to defendant, she was guilty of contributory negligence as a matter of law in assuming the position she was in when she was injured.

There is no doubt that the doctrine of a city's nonliability when the injury is directly caused by a defective plan, in contradistinction to a defective or negligent execution of that plan, exists in the law. The books are fairly full of cases holding this view. Vide, Hays v. Columbia, 159 Mo. App. 431, 141 S. W. 3; Lansing v. Toolan, 37 Mich. 152; Davis v. Jackson, 61 Mich. 530, 28 N. W. 526; McIntyre v. Pittsburg, 238 Pa. 524, 86 Atl. 300; Urquhart v. Ogdensburg, 91 N. Y. 67, 43 Am. Rep. 91, note; Hoyt v. Danbury, 69 Conn. 341, 37 Atl. 1051; Watters v. Omaha, 76 Neb. 855, 107 N. W. 1007, 110 N. W. 981, 14 Ann. Cas. 750; Foster v. St. Louis, 71 Mo. 157. Nor is the...