Kelley v. Parker-Washington Company

• Decision Date: 30 May 1904
• Parties: HELEN KELLEY, by next friend, Respondent, v. THE PARKER-WASHINGTON COMPANY, Appellant
• Court: Kansas Court of Appeals

81 S.W. 631

107 Mo.App. 490

HELEN KELLEY, by next friend, Respondent, v. THE PARKER-WASHINGTON COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 30, 1904

Appeal from Jackson Circuit Court.--Hon. S. C. Douglass, Judge.

Affirmed.

H. B Walker and R. E. Ball for appellant.

(1) The objection to the introduction of any testimony under the petition should have been sustained and the peremptory instruction, asked by the defendant at the close of plaintiff's testimony, that plaintiff was not entitled to recover under the pleading and proof, the same request for an instruction at the close of all the evidence, should have been given, and the motion in arrest of judgment should have been sustained. Riley v. Railroad, 68 Mo.App. 652; Smith v. Packing Co., 82 Mo.App. 9; Barney v Railroad, 126 Mo. 372; Moran v. Car Co., 134 Mo. 641; Young v. Railroad, 93 Mo.App. 267. (2) Even if the court should have sent the case to the jury, it held in rejecting and excluding the testimony repeatedly offered of experienced witnesses, to the effect that as long and as generally as scrapers of this kind had been used and handled in the same way that defendant used and handled the one on which the plaintiff was injured, no injury of any kind had ever resulted to children playing on and attracted by them. This evidence was competent, as bearing on the question of whether defendant could have reasonably apprehended that this plaintiff, or any other child, might get on the scraper and be injured. This proof was offered and excluded.

Karnes, New & Krauthoff for respondent.

(1) The third error assigned, namely, that the trial court improperly excluded the testimony of witnesses Comstock and Lynch with reference to their knowledge of previous accidents of the same kind, was likewise ignored by the counsel in their brief. There can be no serious contention that evidence of the infrequency of similar accidents was utterly incompetent and irrelevant. Marvin v. Bedford, 158 Mass. 464; Railroad v. Kemper, 153 Ind. 618; Field v. Davis, 27 Kan. 400; Association of Trenton v. Giles, 33 N. J. L. 260. (2) Since the ruling of the trial court overruling the demurrer to the plaintiff's evidence, the question of there being any substantial evidence to establish the plaintiff's cause can not be considered by the trial court upon the record. The only question now properly before this court is the question of the correctness of the instructions given by the court. It is not open to question that there was a preponderance of evidence to establish every issue submitted to the jury in plaintiff's favor.

OPINION

BROADDUS, J.

Appellant's statement of the case follows:

"The defendant had a contract with Kansas City, Missouri, to pave Illinois avenue between Twelfth and Thirteenth streets, and in order to perform that contract it was necessary to grade the roadway of the street so that the pavement, when laid would conform to the established grade line. On the morning of August 6, 1902, defendant commenced this work of grading with a number of wheel scrapers. Defendant's employees arrived on the street and began operations about 8 o'clock in the morning. Expecting to procure an additional team to those they already had, they hauled onto the street an extra scraper which was left at the east side of the roadway on Illinois avenue about eight or ten feet out in the street from where the curb line is, and about twenty-five or thirty feet from the residence of plaintiff's parents, which was located on the east side of Illinois avenue between Twelfth and Thirteenth streets and fronting west. This extra scraper was what is known as the Royal No. 2, manufactured by Smith & Sons, the owners of the patent, and was then and still is the most approved appliance for doing that kind of work. It was left at the place stated from about 8 o'clock in the morning of August 6 until the accident happened to the plaintiff about noon. It was left during this time in the condition in which it was hauled there, that is, with the pan up, which all the evidence shows was the customary position in moving the scraper from place to place. The upright position of the pan is maintained by a lever fastened down on the front platform by a pedal catch which may be released by the operator with his foot when it is desired to lower the pan to a horizontal position for loading. To hold the pan firmly in this position while loading, there is a brace-bar with a hinge in it, and this brace, when the pan is up, crooks or elbows at this hinge, and when the pan is down it straightens out into a right line and has a catch whereby it is held rigidly in that position. Above the hinge the brace-bar is double in construction, and below it is single, the last part of the bar projecting above the hinge, and when the pan is lowered, this projection comes in between the portions of the double bar and in right line with them and is the means of fastening the bar into a rigid position. About noon on August 6, the plaintiff, a little girl about five years old, had climbed onto this scraper and taken her seat on top of the pan. Her little brother, a year or so younger, was playing in the street where defendant's employees were working, and as two of...