Knight v. Kansas City

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Broaddus
• Citation: 138 Mo. App. 153,119 S.W. 990
• Decision Date: 17 May 1909
• Parties: KNIGHT v. KANSAS CITY et al.

119 S.W. 990 138 Mo. App. 153 KNIGHT
v.
KANSAS CITY et al. Kansas City Court of Appeals. Missouri. May 17, 1909. Rehearing Denied June 14, 1909.

1. MUNICIPAL CORPORATIONS (§ 805) — USE OF STREETS—CARE REQUIRED OF TRAVELERS.

One who knows of defects in a public street must use reasonable care to avoid them, and the care must be increased in proportion to his knowledge of the risk.

2. MUNICIPAL CORPORATIONS (§ 806) — USE OF STREETS—CARE REQUIRED OF TRAVELERS.

A traveler on a street who has no knowledge of obstructions thereon may assume that it is not obstructed, or that obstructions will be sufficiently guarded to insure safety.

3. MUNICIPAL CORPORATIONS (§ 803) — USE OF STREETS—CARE REQUIRED OF TRAVELERS.

A traveler who did not know of piles of dirt in a street, and who only observed, when two or three blocks away, that a sewer was in the course of construction therein, was not guilty of negligence in driving in the street at night at a trot.

4. TRIAL (§ 143) — ISSUES — QUESTION FOR JURY.

Where the evidence is conflicting on an issue, the question is for the jury.

5. TRIAL (§ 260) — INSTRUCTIONS — REFUSAL TO GIVE INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse a requested charge included in substance in the charge given.

6. TRIAL (§ 252) — INSTRUCTIONS—APPLICABILITY OF EVIDENCE.

It is not error to refuse a requested charge where there is no evidence on which to base it.

7. TRIAL (§ 256) — INSTRUCTIONS—REQUESTS— NECESSITY.

Where there is no error in the instructions asked by a party and given by the court, the adverse party desiring further instructions must request instructions, and, where he fails to do so, he cannot complain of the want of sufficient instructions.

8. JURY (§ 110) — COMPETENCY — WAIVER.

Under Rev. St. 1899, § 3763 (Ann. St. 1906, p. 2095), providing that no exception to a juror on account of legal disability shall be allowed after the jury is sworn, and section 3800 (Ann. St. 1906, p. 2108), authorizing a challenge of any juror for any reason going to his disqualification to serve, a party who failed to examine a juror as to his legal disability because of his inability to read or write, except print, waived the disability, though it was the practice of a judge to examine, in the absence of counsel, all the jurors as to their qualifications before their assignment to the different divisions for service, and though the juror was so examined without disclosing the disability; the juror acting conscientiously, and not understanding the questions put to him by the judge.

9. APPEAL AND ERROR (§ 1045)—HARMLESS ERROR—ERRORS NOT AFFECTING RESULT.

As the statute provides that a verdict of nine competent jurors shall be sufficient, where 10 competent jurors concurred in the verdict, the judgment would not be reversed because of the incompetency of another juror.

[119 S.W. 991]

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by George P. Knight against the city of Kansas City and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Edwin C. Meservey and Francis M. Hayward, for appellant Kansas City. Lathrop, Morrow, Fox & Moore. and Geo. J. Mersereau, for appellant Walsh. E. D. Ellison, E. N. Powell, and W. R. Moore, for respondent.

BROADDUS, P. J.

This is an action for damages for injuries claimed to have been sustained by plaintiff while driving in a vehicle on the south side of Independence avenue, near Myrtle avenue, in Kansas City, Mo., on the 12th day of January, 1904. He claims that he sustained his injury by being thrown from a buggy. The defendant Walsh had a contract with the defendant city for the construction of a sewer running north and south on Myrtle avenue and across Independence avenue. Independence avenue is a street of considerable width, with double car-tracks on it, and is paved. In the construction of the sewer, defendant Walsh made an excavation three feet wide, six feet long, and twelve feet deep on each side of the car tracks. At the bottom of these excavations tunnels were run through beneath the tracks. The sewer pipe was put in these tunnels, then the openings were filled with earth, and the extra dirt piled on top of the fills. These piles of dirt were about three or four feet high, from four to six feet wide, and extended from the car tracks so close to the curb on the south side of the street that there was not room for the passage of a vehicle. There was evidence tending to show that these piles had remained in the street from four to six weeks prior to the date of plaintiff's injury.

There was evidence tending to show that these piles of earth were without lights or barricades at the time plaintiff was injured. The plaintiff was a stone mason, 49 years of age. The injury occurred in the nighttime. The plaintiff and his daughter were driving a one-horse, light vehicle. Their direction led them westward on Independence avenue and across Myrtle avenue. He had knowledge that a sewer was being constructed at the place mentioned, although he had not previously been at the place where it was being constructed. The night was dark, and plaintiff said to his daughter, who was driving, that she had better keep on the south side of the street, they were building a sewer over on the other side, or words to that effect. For protection from the cold plaintiff had a laprobe wrapped around his feet, and, while driving along in a slow trot, the wheels of his vehicle struck the pile of earth, and tipped up and threw him out. He fell on his left side and back upon the granite pavement in the car tracks, and the wheels of the vehicle passed over his body. His evidence tended to show that he received severe injuries from his fall; that he was confined to his bed four or five weeks, and that he did some work about the last days of March in the way of hauling wood; that he was able to work for only a few hours at a time; that he could not withstand heavy lifting; and that he suffered pain in his back and about the second rib. Although there was evidence tending to show that there were no lights or barricades at the place, the defendants' evidence tended to show that the place had been sufficiently guarded by lights which defendant Walsh...