Hoyt v. Kansas City Stockyards

Decision Date05 July 1916
Docket NumberNo. 17624.,17624.
Citation188 S.W. 106
PartiesHOYT v. KANSAS CITY STOCKYARDS OF MISSOURI.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Caleb Hoyt against the Kansas City Stockyards of Missouri. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff sued defendant for personal injuries which he avers he suffered by reason of defendant's negligence. Upon a trial before a jury he was cast and after the usual motions has appealed.

Defendant maintains and operates stockyards in Kansas City for the receiving, keeping, and sale of live stock. Defendant's yards consist of sheds and pens, with alleys connecting these pens and system of stockyards together. These alleys (sometimes called, in the record and herein, alleyways) are paved with brick. It is probable that the pens themselves, as well as the entire premises, are likewise paved with brick, but, since the casualty complained of happened in an alley, the above fact is not important. The pens and alleyways of defendant's stockyards are underlaid with an extensive sewer system, which the evidence tends to prove is necessary in order to carry off the offal and excretions of the domestic animals received, kept, and handled therein. To furnish ingress to this sewer system numerous sewer openings are placed and maintained in the pens and alleyways. These sewer openings are covered with iron grates, which are some 2 feet or 27 inches square, and which grates are set in depressions made by sloping the brick paving, for the most part uniformly, from every direction toward the grate-covered sewer openings. This slope is about 5 by 7 feet in area, with the sewer opening in or near the center of the slope. The proof tends to show that it is necessary to make this slope in the paving, in order to provide a sufficient head of water to carry the waste and excretions from the alleyways through the openings in the grates and into the sewer system.

Plaintiff at the time he was injured was, and for some 10 years or more prior thereto had been engaged in, purchasing cattle out of defendant's yards. On the day he was injured, he had purchased a bunch of cattle and was engaged in separating the fat ones from the thinner ones, which former he intended for immediate sale and which latter he purposed putting upon pasture. The injury was caused by plaintiff's slipping upon a grate-covered sewer opening. Falling thereon, he broke one of the small bones, or the fibula, of his right leg some two inches above the ankle. He had been standing at or near this sewer opening for some 10 minutes or more prior to his falling. In attempting to "head off" a cow which was coming toward him and trying to pass him, he turned suddenly, fell with his right leg twisted under him, and was injured in the manner stated. At the time of plaintiff's fall, this iron grate was covered to a slight extent by loose hay which had fallen, been carried by water, or blown by the wind thereon. We do not gather from the record that the grate was thereby hidden and rendered invisible, or its presence appreciably obscured. Some of the witnesses speak of the amount of hay merely as "a few blades of hay"; the plaintiff himself says that "there was a little bit of hay scattered over this place."

There is no averment in the petition of plaintiff as to the sewer opening in question being out of repair. But some evidence crept in that, upon a somewhat indefinite day, some two or three bricks were loose from the paved way and lying upon the iron grate, leaving holes in the slope to the sewer opening. The negligence relied on goes only to the manner of the inherent construction of the sewer openings generally, and to the alleged negligent manner of continuing to maintain the particular sewer opening in a way which made it dangerous to those stepping on it. Some of the witnesses say that the depression existing and made in the manner and for the purpose set out above was 9 or 10 inches in depth; but since the actual measurement as testified to by witnesses, and as shown by a model of it offered in evidence, shows the depression to be only 5 or 6 inches in depth, we may well take, as we are permitted to do, the latter as being the correct depth of the depression.

The answer pleads the contributory negligence of plaintiff and denies the negligent maintenance of this sewer system and of the grate-covered opening thereto. It avers upon the phase of alleged continuing negligence that it is necessary to maintain said sewer system in its yards in the manner in which the same is constructed and maintained, in order to carry off the excretions from the live stock kept there, and thus keep the stockyards in a sanitary condition and prevent them from being a nuisance and a menace to the public health, and that, said objects regarded, the manner in which its sewer system is maintained is in all ways proper and necessary.

Originally the petition of plaintiff contained the allegation that defendant "permitted said sink hole in said pavement to become out of repair." Prior to answering, defendant moved the court to require plaintiff to make his petition more definite and certain as to the particular detail, if any, in which the sewer opening was out of repair. Thereupon plaintiff, instead of so making his petition upon this phase more definite and certain, struck out therefrom the words quoted above, and thus elected to go to the jury upon the sole ground of defendant's inherently negligent manner of constructing the sewer openings and the slopes leading thereto.

Upon a trial before a jury the latter found unanimously in favor of defendant, wherefore, since the damages claimed are the sum of $10,000, we get jurisdiction. A majority of the matters complained of have to do with the giving of alleged erroneous instructions for defendant, and the refusal to give alleged correct instructions for plaintiff. The instructions mentioned will be found set out in the opinion in connection with what we there say concerning the various contentions of error urged.

Charles M. Miller, of Kansas City, and Scott J. Miller, of Chillicothe, for appellant. Cowherd, Ingraham & Durham and Hale Houts, all of Kansas City, for respondent.

FARIS, P. J. (after stating the facts as above).

Numerous complaints are urged touching the admission or rejection of evidence; but since, upon the principle involved and in the last analysis these same objections were carried into and inhere in the instructions given or refused, we may consider them more briefly by discussing these objections in connection with the instructions to which, or for the failure to give which objections are lodged with us.

I. Complaint is made that the learned court nisi admitted testimony that there were many similar sewer openings and sewer covers in alleys and stock pens about defendant's premises. Upon this point another alleged error is bottomed. It is averred that the trial court erred in refusing instruction 6, offered by plaintiff. This instruction reads thus:

"The court instructs you not to consider any evidence admitted tending to show that other sewer connections were made by defendant in its said yards similar to the construction of the sewer connection in which plaintiff slipped or fell. The defendant cannot thereby establish a standard of care by its own conduct by constructing many connections in the same way, if you find from the evidence the connection in question was improperly constructed, considering the use and purpose of the said sewer connection."

The plaintiff had already offered and the court had given...

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    • United States State Supreme Court of Missouri
    • September 13, 1929
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  • Alexander v. Crotchett
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    • January 30, 1939
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