Irwin v. Kansas City

• Decision Date: 30 June 1913
• Citation: 160 S.W. 30,173 Mo.App. 711
• Parties: LOTTIE IRWIN, Respondent, v. KANSAS CITY et al., Appellants
• Court: Kansas Court of Appeals

160 S.W. 30

173 Mo.App. 711

LOTTIE IRWIN, Respondent, v. KANSAS CITY et al., Appellants

Court of Appeals of Missouri, Kansas City

June 30, 1913

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

A. F Evans, Jas. W. Garner, and F. M. Hayward for appellants.

Chapman & Hanger for respondent.

OPINION

TRIMBLE, J.

The plaintiff sued a partnership and the city to recover damages caused by stepping into a coal hole in the sidewalk on the south side of Twelfth street near the southeast corner of Twelfth and Walnut in Kansas City, Missouri. This coal hole was near the center of the sidewalk and in front of the business house of the defendant partnership. It had for a cover an ordinary iron lid, but the partners used the basement as a room for dishwashing, and were in the habit of removing this lid each morning and leaving it off during the day to let air into the basement.

Plaintiff testified that, at the time she was hurt this iron lid was off and the hole was covered with loose boards on which was set a spiral wire frame, or basket without bottom, not fastened in any way. She testified that she did not know the hole was there, that many persons were passing that point and that when she met some pedestrians on the street at that point, their presence prevented her seeing the hole, and when she attempted to pass these people, her right foot struck the boards, which easily moved to one side causing the wire to roll off into the street and her right foot and leg to go down into the hole throwing her violently to the pavement and seriously injuring her.

The partnership defendants in their testimony admitted that the hole was there, that plaintiff fell in, that they had removed the regular lid for ventilation, but that the hole was protected by an arrangement of boards resting horizontally across the hole with perpendicular boards sticking down into the hole and extending about two feet above the sidewalk, the whole so securely bound together with wire as to constitute a complete cover for the hole and rendering it impossible for plaintiff to fall into the hole and be injured thereby. Nevertheless the fact cannot be gainsaid that plaintiff did fall therein and was injured.

The regular lid for the hole was not defective in any way and was there where it could have been replaced in a moment's time, and was usually put on at night. The hole was round and about 18 inches across. There was testimony that the lid was taken off in the morning, and, in addition to this, one of the partners testified that they usually took it off about seven o'clock in the morning and that he did so at that hour on the day in question, which was the 30th of June 1908. This evidence by the partner as to the precise hour it was taken off was excluded as against the city but was admitted as against the partnership. We presume that the reason it was excluded was because the city was not notified of the taking of the deposition. The objection to the evidence of the partner was simply on the ground that the city was not present when the deposition was taken. Objections to conversations between plaintiff and the partner had been sustained as to the city and when the partner's deposition was read, the court sustained an objection to it as to the city. The testimony of the partner, however, would be competent against the city unless the city had no notice of the taking of the deposition. The presumption is in favor of the correctness of the ruling of the trial court, and we will treat the case as if there is no testimony in the record other than the testimony of Mrs. Shields who said the hole was opened "sometime in the morning" but she did not know the precise hour, and that it was open during the daytime prior to the day of the accident. In-as-much as it was opened to give air to the employees working in the basement on a warm day in the hot summer time, we can assume that it must have been opened early in the morning. Such an inference is reasonable or at least was sufficient to render it incumbent upon defendants to show that it was not opened till later, if that was the fact.

The point in the street in question is one of the busiest and most crowded and travelled parts of the city. The Twelfth street car lines and the Walnut street car lines cross at that corner and there is constant passing back and forth on the sidewalk at the place of the accident. The injury occurred at 1:30 p. m.

The jury found for plaintiff, and against all the defendants, in the sum of $ 1000. Only the city has appealed.

There are three errors complained of. The first is that plaintiff's third instruction tenders an issue not included in the pleadings. This contention is based on the fact that the petition alleges that the lid was off and the hole negligently covered with boards laid loosely across while the instruction included, in addition to the boards,...