Henson v. Kansas City

• Decision Date: 17 March 1919
• Citation: 210 S.W. 13,277 Mo. 443
• Parties: KATHERINE HENSON v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

210 S.W. 13

277 Mo. 443

KATHERINE HENSON v. KANSAS CITY, Appellant

Supreme Court of Missouri, Second Division

March 17, 1919

Appeal from Jackson Circuit Court. -- Hon. William O. Thomas, Judge.

Reversed and remanded.

E. M Harber and Francis M. Hayward for appellant.

(1) The demurrer to the evidence should have been sustained. (a) Because, if the fall of the bank of clay was due to its being left perpendicular and not to the fire built near it, the fall was due to the plan of construction adopted by the city and for the adoption of the plan the city was not liable. Ely v. St. Louis, 181 Mo. 729; Lansing v Toolan, 37 Mich. 152; Urquhart v. Ogdensburg, 91 N.Y. 67; McIntyre v. City of Pittsburg, 238 Pa 524; Foster v. St. Louis, 71 Mo. 157; Walters v. Omaha, 76 Neb. 865; Hays v. City of Columbia, 159 Mo.App. 431. (b) Because if the city was negligent in leaving the bank of clay ten feet high in an outlying part of the city, the defendant was a grown womas nineteen years of age and had precisely the same opportunity to know of its defective condition that the city had, and was therefore guilty of contributory negligence as a matter of law in standing close to such a bank when it fell. Cohn v. City of Kansas, 108 Mo. 393; Wheat v. St. Louis, 179 Mo. 578; Woodson v. Met. St. Ry. Co., 224 Mo. 685; Craine v. Met. St. Ry. Co., 246 Mo. 393; Durkin v. Troy, 61 Barb. (N. Y.) 437. (c) Because respondent was not in a lawful use of the street when injured. Eastburn v. United States Express Co., 225 Pa. 33; Reusch v. Licking Rolling Mill Co., 118 Ky. 369; Williams v. St. Joseph, 116 Mo.App. 299. (2) The court erred in the admission of testimony offered by respondent and objected to by appellant. Halliman v. Cabanne, 43 Mo. 568; Hunt v. Gas Co., 8 Allen (Mass.), 169. (3) The court erred in refusing Instruction 2 asked by appellant. Coffey v. Carthage, 186 Mo. 573. (4) The court erred in refusing Instruction 3 asked by appellant. Miller v. Kansas City, 157 Mo.App. 533; Pyburn v. Kansas City, 166 Mo.App. 150. (5) The verdict of the jury was so excessive and unjust that it shows on its face that it was the result of bias and prejudice on the part of the jury against appellant. Lessenden v. Mo. Pac. Ry. Co., 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Partello v. Railroad, 240 Mo. 122; Applegate v. Railroad, 252 Mo. 173; Hinkle v. C. B. & Q. Ry. Co., 199 S.W. 227.

Piatt & Marks for respondent.

(1) The doctrine of non-liability for the exercise of a governmental function does not apply, because plaintiff's injuries were not occasioned by an unwise plan of legislation or a defect thereof, but because a large piece of unsupported and unprotected earth abutting upon the sidewalk fell upon her while she was upon the sidewalk of an open public street. It was no part of the legislative plan for grading the street that a three-ton mass of earth should fall upon plaintiff or other pedestrains on the street and injure her, or them; nor can the wildest stretch of imagination make it such. Rupenthal v. St. Louis, 190 Mo. 225; Straub v. St. Louis, 175 Mo. 416; Campbell v. Chillicothe, 239 Mo. 455, 461; Shippey v. Kansas City, 254 Mo. 23; Wiggin v. St. Louis, 135 Mo. 558. (2) Respondent did not have the same opportunity to know the defective condition that the city had. The city has several hundred miles of streets and hundreds of instances in which unsupported perpendicular walls of earth abutting upon streets ultimately crumble and fall. This court declares such happenings the result of natural law. Beck v. Brewing Co., 167 Mo. 200. The city has an egineering and scientific department especially skilled, informed and trained as to such matters. The respondent is not the possessor of such experience or information. The occurance was in the night time; the wall was barely discernible; the light made by the fire was between her and the wall. Defects or dangers in the wall were not discernible; the boys standing against the wall saw none. Their first knowledge of it was when they felt it pushing out against them and they jumped. She had a right to assume that the city knew whether the wall of earth was dangerous and when it would fall, and whether it would fall into pieces of sufficient size to injure her. (3) Plaintiff was not coasting when the injury was received nor is there a word of testimony in the record that she at any time that evening coasted; she was there acting as a chaperon for her younger sister and her younger friends. The evidence discloses that plaintiff had nothing whatever to do with either starting or maintaining the fire, nor was she warming by it. The coming of plaintiff to the fire was not an unlawful act within the ordinance. Appellant contends that Dr. Hamilton was erroneously permitted to testify to a conclusion, the question being, "Did you see any evidence of Miss Katherine feigning these tears?" and the answer being, "I couldn't say that there was any evidence that she is feigning." The question neither calls for a conclusion nor does the answer express one.

FARIS, J. Williams, P. J., concurs in result and in all except paragraphs one and nine.

OPINION

FARIS, J.

Plaintiff sued defendant for personal injuries occurring 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 49th 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 ten to twelve feet high. A wagonway twenty-six feet wide had been improved at the point of the injury on 49th 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 nineteen years of age, then working for a real estate concern in a minor clerical capacity at a salary of six dollars a week, had gone to a point on 49th Street between Prospect Avenue and Wabash Avenue to chaperon her sister, who with other young persons had resorted to this part of 49th 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 three to five 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 three feet and seven inches from the wall (the city's measurements showed 3.6 feet, exactly) and that it was some two feet in height and twenty inches in diameter and of such heat and intensity as to convert the clay of the wall which fell, into burnt clay of a brick-like 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 were 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 ten or eleven 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 fibres of the muscles of both legs, which the evidence tends to prove has (at least till an operation shall correct it) permanently...