Jones v. Kansas City, 42181

• Citation: 243 S.W.2d 318
• Decision Date: 12 November 1951
• Docket Number: No. 42181,No. 1,42181,1
• Parties: JONES v. KANSAS CITY
• Court: Missouri Supreme Court

Page 318

243 S.W.2d 318

JONES v. KANSAS CITY.

No. 42181.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1951.

David M. Proctor, City Counselor, T. James Conway, Asst. City Counselor, and John J. Cosgrove, Asst. City Counselor, all of Kansas City, for appellant.

Harry L. Jacobs, Robert J. Coleman and J. M. Loomis, all of Kansas City, for respondent.

DALTON, Judge.

Action for $25,000 damages for personal injuries alleged to have been sustained on account of defendant's negligence. The cause was tried to a jury and a verdict returned for defendant, but the court granted a new trial on account of alleged error in the giving of instructions numbered 4, 5, and 6 requested by defendant. Defendant has appealed and contends there is no error in the instructions.

In view of the issues presented only a brief statement of facts is required. Plaintiff's evidence tended to show that, on the day plaintiff was injured, a water meter box, the property of defendant's water department, was located in the parkway between the sidewalk and the curb in front of 1019 Harrison street in said city. The meter box consisted of a buried upright tile which made a hole some 3 feet deep. It was covered with an iron band into which fitted a round iron lid 14 inches across weighing from 6 to 10 pounds. Some cement patch work surrounded the box and, on the south side, there was a depression in the parkway where the soil was washed away, leaving 'a mean washed-out place * * * several inches below the level of the sidewalk, or curb, or the water cap lid.'

On the morning of September 20, 1948, plaintiff parked her automobile at the curb adjacent to the parkway where the meter box was located. Plaintiff was familiar with the location of the meter box. She had seen the place lots of times. When she returned to her automobile near noon, the sun was shining. She noticed the meter box in the parkway directly in the line of her approach from the sidewalk to the right front door of her automobile. She 'began to look for a place to stand to get into the car and selected the box.' She looked at the meter box, it looked all right to her she didn't notice anything unusual about it, she didn't examine it closely, she looked down at it but did not see that the lid was tipped up on the west side and she selected it as a place to step. She reached out to unlock the automobile door and stepped on the lid with her right foot. The lid instantly tripped when she put her weight on it, turned sideways and her right foot and leg went down into the box so that her right knee struck the inside edge of the box and her left knee crumpled under her in a flexed position. Her right ankle was twisted and sprained and she suffered other injuries.

Plaintiff's evidence further tended to show that, on the evening before plaintiff was injured, an employee of defendant's water department came to the meter box and shut off the water because of a leak in a hydrant on the adjacent property. About 8 a. m., the following day another employee of defendant's water department came to the meter box and raised the meter box lid, looked in the box and put the lid back on again. About 10 a. m. on the same day, and before plaintiff was injured, still another employee of defendant's water department came to the water meter box, raised the lid, looked into the box and put the lid back over the hole, but didn't put it down so it would fit. After this last employee had left, a colored man, resident of the adjacent property and witness for plaintiff, who was seated some 15 feet away, observed that the top of the meter box appeared to be propped up on the west side, not over a half inch higher than the east side, but so you could see it was tilting a little bit. 'It didn't sit up level like it naturally do when it is put into its place.' He 'seen it wasn't fit down like it had always been.' He promptly went to plaintiff's aid when she fell and was injured.

Defendant's evidence tended to show that the last employee to visit the meter box read the meter therein and put the lid back on and stepped on it to test it and, when he left the lid was securely in place.

Plaintiff's cause was submitted on specific negligence, to-wit, the alleged negligent act of an employee of defendant in replacing and leaving the lid of the water meter box 'in a loose, tilted and not firmly seated condition * * * so that it was liable to tilt when stepped upon, and * * * by reason thereof said lid was in a dangerous and unsafe condition for persons crossing said parkway and stepping upon said lid.' See Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1180, 1182.

Instruction 4, in part, states: '* * * You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff's evidence, if you find and believe from all of the evidence in the case that the defendant was not negligent, and if you do find and believe from all of the evidence in the case that the defendant was not negligent, then your verdict should be for the defendant.'

Respondent's complaint of the instruction is that it is inconsistent and contradictory, because 'the 'occurrence' as shown by plaintiff's evidence fully proved negligence and such was the probative effect of the 'occurrence' whether considered alone or together with the other evidence.' Respondent says the word 'occurrence' includes the things that occurred according to plaintiff's evidence and that 'all of them collectively might be regarded as the occurrence.'

Appellant contends that the most obvious meaning of the word 'occurrence' is 'plaintiff's fall and injury'; that 'the word 'occurrence' naturally suggests results as distinquished from cause, and is understood not to include cause'; that it could not have referred to the negligent tilting of the lid by the employee; that, by the wording of the instruction, 'the negligent tilting of the lid by the employee was excluded from 'occurrence"; that 'ambiguity is the most that can be made of respondent's criticism'; and that 'reading all of the instructions together, no juryman would have understood that plaintiff should be denied recovery if defendant had left the lid in a tilting condition.' Jenkins v. Missouri State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666, 669.

The word 'occurrence' has been defined as that which occurs, an event, incident or happening. Webster's New International Dictionary, Second Edition. Plaintiff's evidence clearly showed four separate and distinct happenings, events, incidents, or occurrences with reference to the meter box in question, to-wit, the detailed evidence concerning the visits of each of the three employees of defendant as well as plaintiff's act in stepping on the lid, her fall and injury. Two of the occurrences (the visit of the last employee and plaintiff's fall) were closely related as shown by the evidence (Taylor's testimony). 'He come and raised the lid, too. * * * He looked down there, and he says, 'This has been cut off, ain't it?' and I says, 'Yes, a man cut that off yesterday evening.' Well, he pushed the lid back like that (indicating) and got in his truck and went off. * * * I noticed the lid wasn't fit down on it. It was porpped up on the west side and lowered a little bit on the east side, the way it set on there, just a little bit, enough that you could see it. * * * Oh, not over a half an inch, if that. Just enough you could see it was tilting a little bit. * * * I seen a lady, * * * she come across the south of her car, come up the sidewalk just in front of me and started to open the door of her car and she fell right there. * * * I see her fell and I seen the lid was cocked up pretty much and one of her legs, I don't know which leg it was, was down in that hole, * * *.'

The instruction did not specifically refer to plaintiff's fall and injury. The jury may well have thought the visit of defendant's last employee to the meter box, and his leaving the lid so that it would trip when plaintiff stepped upon it, was the occurrence shown by plaintiff's evidence and referred to by the instruction. It was this occurrence upon which plaintiff relied to show defendant's negligence. To tell the jurors that they should not find the defendant was negligent from the mere fact of this occurrence 'shown by the plaintiff's evidence,' if they found from all the evidence that the defendant was not negligent, would have been to submit a contradiction. An instruction is prejudicially misleading if it is liable to cause the jury to leave out of consideration some of the facts bearing on the issue of negligence. Orris v. Chicago, R. I. & P. R. Co., 279 Mo. 1, 214 S.W. 124, 127; Barr v. City of Kansas City, 105 Mo. 550, 557, 16 S.W. 483 (instruction on contributory negligence.) The giving of a somewhat similar instruction (No. 3) was approved in the case of Payne v. Carson, Mo.Sup., 224 S.W.2d 60, 62, but that case was submitted under the res ipsa loquitur doctrine, specific negligence was not involved and the objection here made was not presented or ruled.

Instruction 4 was ambiguous as appellant, in effect, concedes and whether or not it was misleading and prejudicially erroneous depends upon how it was considered by the jury. It is unnecessary to determine whether the giving of the instruction would have been reversible error had the motion for a new trial been overruled. The trial court apparently believed that under the facts and circumstances of this case the giving of the instruction was prejudicially erroneous. He sustained the motion for a new trial on the ground that he had erred in giving this and other instructions. We think the defects apparent in the instruction are sufficient to sustain the trial court's action. Morris v. E. I. DuPont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 39, 42; Tennison v. St. Louis-San Francisco R. Co., Mo.Sup., 228...