Jackson v. Kansas City
| Decision Date | 07 March 1904 |
| Parties | JOSEPHINE JACKSON, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
Cause reversed and remanded.
R. J Ingraham, City Counselor, and L. E. Durham for appellant.
(1) What were reasonable precautions in this case for the protection of the traveling public, was a question that should have been left for the jury to decide. Plaintiff's instruction No. 1 erroneously declares as a matter of law that it was the duty of defendant to erect barriers mounted with lights. Campbell v. Stanberry, 85 Mo.App. 159; Staples v. Trenton, 69 Mo. 592; Loewer v Sedalia, 77 Mo. 445; Chicago v. Baker, 195 Ill 54; Omalley v. Parsons Borough, 191 Pa. St. 612; Howard v. Menden, 117 Mass. 590. (2) Said instruction is further erroneous in that it requires both barrier and lights to be erected. Campbell v. Stanberry supra. (3) Plaintiff's action is not based upon the ordinance requiring barriers and lights, therefore an instruction was erroneous which declares a failure to comply with the same as negligence per se. Skinner v. Stifel, 55 Mo.App. 9; Campbell v. Stanberry, supra; Sanders v. Railroad, 147 Mo. 411; Jackson v. Railroad, 157 Mo. 621; Weller v. Railroad, 164 Mo. 180. (4) The court erred in modifying defendant's instruction No. 3. Cohn v. Kansas City, 108 Mo. 393; Lincoln v. Calvert, 39 Neb. 305. (5) The court erred in modifying defendant's instruction No. 4. Tuffree v. Center, 37 Iowa 538. (6) The court's refusal to give defendant's instruction No. 7 is reversible error. Myers v. Kansas City, 108 Mo. 480; Ball v. Independence, 41 Mo.App. 475.
W. T. Latham and Theo. L. Carns for respondent.
(1) The plaintiff's first instruction is correct. In the first place, it does not declare that the failure of appellant to provide lights and barriers was negligence per se, or as a matter of law. Loewer v. Sedalia, 77 Mo. 437. (2) But, even though this instruction had declared that, leaving these trenches without barriers or lights was negligence per se, or as a matter of law, it would not be erroneous. Fullerton v. Fordyce, 144 Mo. 519. (3) In sections 861 and 862, of the Revised Ordinances of 1898, introduced in evidence in this case, the city prescribes what is a reasonable precaution for the protection of the traveling public, and if the trenches were not protected in accordance with these ordinances, then defendant was guilty of negligence as a matter of law; as much so as a railway company would be in running its trains in violation of law. Robertson v. Ballard, 84 Mo. 119; Fusili v. Railway, 45 Mo.App. 536; Winsor v. Railway, 45 Mo.App. 124. The fact being conceded, the conclusion of negligence is a matter of law. (4) The action of the trial court in modifying appellant's third instruction was harmless. The right of the city to use its streets, as set out in this instruction, is nowhere questioned, and no issue of this kind was raised in the trial of the case. (5) The modification of appellant's fourth instruction was likewise harmless. Skinner v. Stifel, 55 Mo.App. 15. (6) The fourth point of appellant's objection, being with reference to its seventh instruction, which the court refused, is fairly answered in our discussion of appellant's first objection.
The plaintiff's case upon which she relies to recover is substantially as follows: On the night of January 19, 1900, having heard an alarm for fire, in company with her sister-in-law she went to the southeast corner of the Paseo and Tenth street in defendant city, at which point she learned that there was no fire but that a horse had fallen into a ditch dug in Tenth street by the Metropolitan Street Railway Company. She then started north to go across said street to the place where the horse was in the ditch, when she encountered said ditch (which ran east and west in said street) and fell into it. She claimed that the ditch was seven or eight feet deep and about four feet wide; that it was a dark night; that there were no lights or barriers placed about it to give her warning; and that the only light in the neighborhood was a gas lamp at the street corner which did not show at the excavation.
Several witnesses corroborated plaintiff as to the fact that the excavation was not lighted. An ordinance of the city was introduced as evidence requiring all excavations in or near a street to be enclosed in the night time with "good, substantial and sufficient barriers not less than three feet high," with a red light at each end in such a position as to shed light upon such excavation.
The evidence also tended to show that plaintiff was injured as the result of her fall. The excavation was made by said street railway company for the purpose of putting under ground its electric feed wires, and was located between its tracks laid in Tenth street. The defendant's evidence went to show that it was two feet four inches wide and was in sections of then or twelve feet in length with intervening spaces which were connected by tunneling. While the excavation was in progress the operation of the street cars was continued. The defendant's foreman testified that the excavated earth was piled up along on the north side of the ditch to the height of several feet, and that on the evening in question lights had been set thirty feet apart on the unexcavated part of the ditch and that lights had also been placed on the earth along the north side thereof. David Wilson, the contractor, testified that he kept a watchman at the place. Other evidence was to the effect that the lights were in place at the time plaintiff fell into the ditch.
The jury returned a verdict for the plaintiff for $ 500.
Defendant complains of the action of the court in the giving and refusing instructions. Instruction number one is as follows:
1. "The court instructs the jury that if you believe from the evidence that prior to January 19, 1900, Kansas City authorized the Metropolitan Street Railway Company to dig a trench or ditch in and along Tenth street from Grove street to Flora avenue, in Kansas City, and that said company by its contractors did dig a trench in said street pursuant to said authority of defendant, then defendant had knowledge of the condition of said street, and it became and was the duty of the defendant to protect said trench or ditch with barriers around same and place...
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