Hunt v. Kansas City

• Decision Date: 14 September 1939
• Docket Number: 36321
• Citation: 131 S.W.2d 514,345 Mo. 108
• Parties: Pearl Hunt v. Kansas City, Appellant
• Court: Missouri Supreme Court

131 S.W.2d 514

345 Mo. 108

Pearl Hunt v. Kansas City, Appellant

No. 36321

Supreme Court of Missouri

September 14, 1939

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge;

Affirmed (upon remittitur).

Fred Bellemere and John J. Cosgrove for appellant.

(1) The court erred in giving Instruction 1 requested by the plaintiff, over the objections of the defendant, in that said instruction (a) Omits the necessary element whether the sidewalk could have been rendered reasonably safe; (b) Because it enlarges the legal obligation of the city and imposes a greater burden than required by law. Root v. K C. So. Ry., 195 Mo. 350; Fath v. City, 115 S.W.2d 75; Allen v. City, 64 S.W.2d 765; Bayne v. City, 253 S.W. 116; Robertson v. Wabash Railroad, 152 Mo. 382, 53 S.W. 1082; Sutton v Kansas City, 119 S.W. 1084, 138 Mo.App. 105. (2) The verdict is excessive and the court erred in not requiring a remittitur. Dorman v. East St. Louis Ry. Co., 75 S.W.2d 854; Clark v. Atchison & Eastern Bridge Co., 62 S.W.2d 1079; Prichard v. Dubinsky, 89 S.W.2d 530; Adelsberger v. Sheehy, 79 S.W.2d 109; Corbett v. Terminal Railroad Assn., 82 S.W.2d 97.

Prince & Beery, Walter A. Raymond and Fenton Hume for respondent.

(1) Plaintiff's Instruction 1 is not subject to the criticism made of it, and the court committed no error in giving the same. (a) An erroneous general direction is cured by a subsequent correct and specific direction in the same instruction. Drake v. K. C. Pub. Serv. Co., 333 Mo. 520, 63 S.W.2d 82; Hutson v. Mo. Stair Co., 296 S.W. 216; Garard v. Manufacturers' Coal & Coke Co., 207 Mo. 242, 105 S.W. 767; Brackett v. Black Masonry & Contracting Co., 326 Mo. 387, 32 S.W.2d 288. (b) Similar error in appellant's instructions operates as a cure of infirmity in the instructions of respondent. Kines v. Jamison, 277 S.W. 939; Larey v. M.-K.-T. Ry. Co., 333 Mo. 949, 64 S.W.2d 681; Gibler v. Term. Railroad Assn., 203 Mo. 208, 101 S.W. 37; Jerowitz v. Kansas City, 104 Mo.App. 202, 77 S.W. 1088; Cowgill v. St. Joseph, 180 Mo.App. 327, 167 S.W. 1157. (2) The verdict is an extremely modest compensation for the numerous serious, painful and permanent injuries plaintiff received. Whittington v. Westport Hotel Operating Co., 328 Mo. 1117, 33 S.W.2d 963; Westenhaver v. St. L.-S. F. Ry. Co., 340 Mo. 511, 102 S.W.2d 61; Chapman v. Kansas City Rys. Co., 233 S.W. 177; Rigley v. Prior, 290 Mo. 10, 233 S.W. 828; Bergfeld v. Dunham, 228 S.W. 891; Standefer v. Fleming, 298 S.W. 134; Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Jepson v. Shaw Transfer Co., 211 Mo.App. 366, 243 S.W. 370; Stofer v. K. C. Pub. Serv. Co., 226 Mo.App. 37, 41 S.W.2d 614; Jackman v. St. Louis & H. Ry. Co., 231 S.W. 978; Powell v. Kansas City Rys. Co., 226 S.W. 916; Lange v. Anheuser-Busch Brewing Assn., 241 S.W. 454; Rhodes v. Mo. Pac. Ry. Co., 213 Mo.App. 515, 255 S.W. 1084; Moore v. Hines, 210 Mo.App. 181, 241 S.W. 457; Shaw v. East St. Louis Ry. Co., 55 S.W.2d 497; Silsby v. Hinchey, 107 S.W.2d 812; Scheipers v. Mo. Pac. Ry. Co., 298 S.W. 56.

Clark, J. All concur, except Hays, P. J., absent.

OPINION

CLARK

Plaintiff filed suit in the Circuit Court of Jackson County against the City of Kansas City and two individual defendants, Hawk and Phelps, asking damages for personal injuries due to falling into an open coal hole on a public sidewalk. The jury returned a verdict in favor of the individual defendants, and against the city for the sum of $ 10,000.

The city has appealed and assigns two grounds of error: (1) that Instruction No. 1, given at request of plaintiff, is erroneous; (2) that the verdict is excessive.

Plaintiff's Instruction No. 1 in the first paragraph told the jury that if defendants, Hawk and Phelps, in wrecking a certain building negligently left a certain coal hole uncovered and without any barricade or warning sign; "and if you so find that said unclosed and uncovered coal hole constituted a condition that was not reasonably safe for pedestrians traveling along said public sidewalk, if so;" etc., they should return a verdict against said individual defendants.

The second paragraph of the same instruction reads in part as follows:

"You are further instructed that if in addition to the foregoing you further find and believe from the evidence that Washington Street at the place where said coal hole was left open and uncovered, if you so find, was a traveled public street and thoroughfare within the corporate limits of the City of Kansas City, Missouri, and that said coal hole was negligently suffered or permitted to remain open or uncovered in said sidewalk for several weeks before said date, and for such length of time before said occurrence that the defendant Kansas City, by the exercise of ordinary care knew, or could have known, thereof, if you so find, in sufficient time so that thereafter by the exercise of ordinary care the said City could have remedied said conditions or caused said hole to be covered, if so, and could thereby have prevented the injury to plaintiff, if so; and that the defendant City negligently failed so to do, if so; and as a direct result thereof plaintiff, while in the exercise of ordinary care for her own safety, stepped into said coal hole and was injured, if so;"

Appellant complains of that part of the instruction which reads as follows: "could have remedied said condition or caused said hole to be covered, if so, and could thereby have prevented the injury to plaintiff, if so." Appellant says that such language enlarges the measure of duty required by defendant and tells the jury, in effect, that the city was obliged to prevent an injury to the plaintiff at any and all hazards, citing: Root v. K. C. So. Ry., 195 Mo. 348, 350, 92 S.W. 621; Fath v. City (Mo. App.), 115 S.W.2d 75; Allen v. City (Mo. App.), 64 S.W.2d 765; Bayne v. City (Mo. App.), 253 S.W. 116; Robertson v. Wabash Ry., 152 Mo. 382, 53 S.W. 1082; Sutter v. Kansas City, 138 Mo.App. 105, 119 S.W. 1084.

The cases of Root v. K. C. So. Ry., supra, and Sutter v. Kansas City, supra, each turned on the meaning of the word "liable." The Root case held the word "liable" to mean, "within the range of possibility" and an instruction was held erroneous which told the jury that it was the duty of the railroad to keep its right-of-way free of combustible material which would be "liable" to take fire, etc. The Sutter decision was based on the Root case. The other cases cited by appellant follow the general rule that defendant is not an insurer, but is only required to exercise ordinary care to provide a reasonably safe place and has a reasonable time to correct defects after same become known, or should become known by the exercise of ordinary care.

The above citations are in point if appellant's view of the instruction is correct, but we believe appellant misreads the instruction. The instruction requires the jury to find: that the hole was left open, which constituted a condition not reasonably safe for pedestrians; that the hole was negligently left open for several weeks and for such length of time that the city by the exercise of ordinary care could have known in sufficient time so that thereafter by the exercise of ordinary care the city could have remedied such conditions (that is, the uncovered condition of the hole) or caused the hole to be covered and could thereby (that is, by remedying the uncovered condition or covering the hole), prevented injury to plaintiff, and defendant negligently failed to do so (that is, failed to exercise ordinary care to remedy the uncovered condition, etc.)

The words "and could thereby have prevented injury to the plaintiff" could have been omitted without injury to the instruction. In fact, the instruction would have read better without those words, but their inclusion does not authorize the jury to return a verdict against defendant if it "could have prevented the injury and negligently failed to do so" (as appellant seems to think), but authorizes such a verdict only "if defendant could have prevented the injury by the exercise of ordinary care to cover the hole and negligently failed to do so." Reading the instruction in its entirety we do not believe it misled the jury as to the measure of duty owed by the defendant. [Drake v. Pub. Service Co., 333 Mo. 535, 63 S.W.2d 75; Larey v. Ry., 333 Mo. 949, 64 S.W.2d 681; Garard v. Coal Co., 207 Mo. 242, 105 S.W. 767; Gibler v. Terminal Ry., 203 Mo. 208, 101 S.W. 37; Jerowitz v. Kansas City, 104 Mo.App. 202.]

On the question of the amount of the verdict, both appellant and respondent have cited a large number of cases, but we find them of little aid because of the difference in the...