Keithley v. City of Independence
| Decision Date | 01 October 1906 |
| Parties | GRAYCE KEITHLEY, Respondent, v. THE CITY OF INDEPENDENCE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
Lewellyn Jones for the city of Independence; Flournoy & Flournoy for Wait Plumbing Company.
(1) The court should have given defendants' instruction, in the nature of a demurrer to the evidence. The testimony in this case shows such negligence on the part of the plaintiff, as to preclude a recovery. Giardina v. Railroad, 185 Mo. 330; Davies v. Railroad, 159 Mo. 1; Fellenz v. Railroad, 106 Mo.App. 154. (2) The liability, if any in this case is that of H. H. Wait and the Wait Plumbing Company, and after they had been made parties defendant, it was error to allow plaintiff to dismiss as to them. (3) The work in Maple avenue was commenced between three and four o'clock in the afternoon of the day of the accident. The workmen quit work at six o'clock and the accident happened a few minutes thereafter--before half past six o'clock. The city did not have actual notice, and the time was far too short to charge constructive notice. Fehlhauer v. St. Louis, 178 Mo. 635; Carrington v. St. Louis, 89 Mo. 208; Badgley v. St. Louis, 149 Mo. 133; Bonine v. Richmond, 75 Mo. 437; Franke v. St. Louis, 110 Mo. 516; Schweickhardt v. St. Louis, 2 Mo.App. 579. (4) The court committed error in the admission of testimony. (5) The court committed error in giving plaintiff's instruction numbered 2. Plaintiff elected to bring a common-law action for negligence, rather than base her suit upon the ordinance, and under such a pleading, it was error, first, to instruct the jury that it was the duty of the city to provide both lights and barriers, and second, that its failure to do so constituted negligence per se. The giving of this instruction constituted reversible error. Jackson v. Kansas City, 106 Mo.App. 52; Cambell v. Stanberry, 85 Mo.App. 159; Staples v. Trenton, 69 Mo. 592; Loewer v. Sedalia, 77 Mo. 445; Fusili v. Railroad 45 Mo.App. 535.
Callahan & Dryden for respondent.
(1) This court will not consider the overruling of the demurrer to the evidence by the trial court unless all the evidence is set forth in haec verba. Colburn v. Flower Co., 49 Mo.App. 415; Storey v. Patton, 61 Mo.App. 12; Costello v. Fusler, 80 Mo.App. 107; Rutledge v Tarr, 95 Mo.App. 265; Carpenter v. McDavitt, 66 Mo.App. 1; Harrison v. Rounds, 190 Mo. 349; Eckhard v. Transit Co., 190 Mo. 593. (2) Respondent had the right to sue the city of Independence, H. H. Wait and The Wait Plumbing Company, or any one of them that she might see fit, and the city of Independence was primarily liable to her. She elected to sue the city of Independence. (3) The evidence does not bear out the statement made to the effect that the work was begun about three or four o'clock in the afternoon of the day of the accident. The evidence shows that the city of Independence had not only constructive notice that this work was being done, but that it had actual knowledge through its officers. The work had been going on for something near two weeks. (4) There was no error in the giving of instruction numbered 2 on the part of respondent in view of the theory upon which the case was tried by the defendant as well as the plaintiff, and especially in view of instruction numbered 5 given for the defendant. Suder v. Transit Co., 189 Mo. 107; Rapp v. Transit Co., 190 Mo. 153. But if it had been technically inaccurate, the case having been tried and submitted upon that theory by both parties, appellant cannot now complain. Kansas City v. Madsen, 93 Mo.App. 143; Thompson v. Railroad, 86 Mo.App. 141; Murphy v. Century Bldg., 90 Mo.App. 621; Phelps v. Salisbury, 161 Mo. 1. (5) In determining whether the judgment should be reversed for error in a single instruction, such instruction should be read in connection with all the instructions given in the case. Noble v. Blount, 77 Mo. 235; Schueler v. Schueler, 18 Mo.App. 69. (6) Where under the law, as applied to the facts, the judgment should have been for the respondent, a judgment for respondent will not be disturbed by the appellate court though the cause was tried on the wrong theory, and the record shows error against the appellant. Jones v. Brownlee, 161 Mo. 258; Moore v. Railroad, 176 Mo. 528; Harris v. Fowler, 171 Mo.App. 488; Whitehead v. Atchison, 130 Mo. 485; Greer v. Bank, 128 Mo. 559.
--The plaintiff's suit against the city is for damages alleged as the result of its negligence in failing to keep its streets in a reasonably safe condition for travel.
The injury occurred near the intersection of Maple avenue and Spring street. At about six o'clock on November 25, 1903, plaintiff drove into a trench that had been dug along the west side of Spring street partly across Maple avenue, which caused her to be thrown from her buggy and whereby she was injured. The Methodist Church building is located at the northwest corner of the two streets. The church people had employed the Wait Plumbing Company to dig the trench in question for the purpose of draining the basement of their building. The appellant claims that the work had only been commenced on the day in question, but there was evidence that it had been in progress two weeks prior thereto. At the time when the workmen quit their work the drain had not been completed across Maple street, which runs east and west, but it had been opened from the north to a certain distance and from the south to a certain distance, leaving a space between the two ends of about twenty feet. This drain is located west of the street crossing. Red lights to warn travelers of the danger were placed at the two ends mentioned, and barricades placed at the crossing. As the plaintiff was driving east she necessarily encountered the drain before she reached the barricades. She says she saw one of the lights and avoided that part of the street, but drove into the ditch on the other side, where she says she saw no light. The drain was dug without the permission of defendant.
At the close of plaintiff's case, the city interposed an instruction in the nature of a demurrer, which the court overruled. This action of the court is assigned as error on the ground that, as the city did not authorize the work to be done, there was no evidence that it had notice of the condition of the street; and that the evidence showed that plaintiff was guilty of such contributory negligence as precluded her from recovering.
The evidence tended to show that Joseph J. Randall, a member of the city council, passed the place where the work was being done several times a day and must have known of the condition of the street at the time of plaintiff's injury. Notwithstanding the evidence tends to show that at least a part of the work in the crossing of Maple avenue had been done the day of plaintiff's injury, and at most only a day or two previous had any work been done there, the showing that said member of the defendant's council passed the point daily and must have been aware of its condition was some evidence of notice to the city. We do not think that defendant is in a condition to insist upon maintaining that the city did not have...
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