Knight v. Kansas City
| Decision Date | 05 June 1905 |
| Citation | 87 S.W. 1192,113 Mo.App. 561 |
| Parties | CHARLES L. KNIGHT, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
J. J Williams and J. W. Garner for appellant.
(1) The court erred in giving instruction numbered one, in which it submitted to the court, the issue as to whether twenty-third street was a public street or not; and by further telling that if appellant knew of the condition of such street or by the exercise of ordinary care could have known of the same and by the exercise of ordinary care could have repaired the same, for the reason there was no evidence upon which to base the same, and for the reason that the place where respondent was injured, is not shown to be such a place as appellant was under legal obligations to repair. Downend v. Kansas City, 156 Mo. 60; Thrush v. Cameron, 21 Mo.App 394; Baldwin v. Springfield, 141 Mo. 205; Johnson v. St. Joseph, 96 Mo.App. 663; Cole v Desota, 156 Mo. 447. (2) The court erred in giving instruction numbered two upon the part of respondent, because it authorized respondent to recover the amount expended for medicine, when the evidence failed to show the amount so expended. Mamerberg v. Railway, 62 Mo.App. 563; Rhodes v. Nevada, 47 Mo.App. 498; Slaughter v Railway, 116 Mo. 269; Evans v. Joplin, 76 Mo.App. 20; Smith v. Railway, 108 Mo. 244; Brake v. Kansas City, 100 Mo.App. 611; Duke v. Railway, 99 Mo. 351.
Scarritt, Griffith & Jones for respondent.
(1) The evidence is positive and direct, admitted without objection, that "twenty-third street has been an open and public thoroughfare running in an east and west direction the same period," (seven years and more). Buschman v. St. Louis, 121 Mo. 537. (2) The defendant by assuming that Twenty-third street was a public street when interrogating the witnesses at the trial and in all of the instructions submitted by it will not be permitted in this court to assert there was no evidence to support that fact. Jennings v. Railway, 99 Mo. 399; Hopkins v. M. W. of A., 94 Mo.App. 409; Fenwick v. Bowling, 50 Mo.App. 516; Mercantile Co. v. Burrell Sisters, 66 Mo.App. 117; Siter v. Bischoff, 63 Mo.App. 160; Hartman v. Railway, 48 Mo.App. 619; Randolph v. Frick, 57 Mo.App. 400; Bray v. Seligman, 75 Mo. 31; Minton v. Steele, 125 Mo. 181; Dickson v. Railway, 104 Mo. 499. (3) The second point of defendant that this verdict should be reversed because the evidence does not show the specific amount expended for medicine is the most technical of technicalities. He has not a precedent for so rare a technicality.
The plaintiff's suit is to recover damages for personal injuries sustained by him on December 3, 1903, caused by an alleged defective sidewalk on the south side of Twenty-third street near Montgall avenue in Kansas City, Missouri. The plaintiff fell and was injured at a point on said sidewalk which had been taken off for the purpose of constructing a granitoid sidewalk on Montgall avenue, which left a step-off of about ten inches to the latter walk, and it had been left in this condition for several months prior to the injury. The plaintiff, while it was dark, fell by reason of said step-off and was injured. The plaintiff obtained a judgment for $ 4,000, from which defendant appealed.
The principal contention of defendant, is that it was not shown that Twenty-third street was a public street of the city. The evidence upon that question was slight. It was shown that the street in question had been used by the public many years, which of itself would not make it a public street of the city; but it was shown that there was a street lamp at its intersection of Montgall avenue; that there was a sidewalk, curbing and sewer. However, as plaintiff was permitted to assume as proven the city's ownership of the streets without objections, full proof should not be exacted. [Oyler v. Ry., 113 Mo.App. 375; and Kerr v Ry., 113 Mo.App. 1; Geiser v. Railroad, 61 Mo.App. 459; Keltenbaugh v. Railroad, 34 Mo.App. 147; Lindsay v. Railroad, 36 Mo.App. 51.] The defendant did not raise the question by a demurrer to plaintiff's evidence. All the questions put to witnesses both on examination in chief and on cross-examination referred to the street as a public street. And the instruction on both sides treated it as such. In Dickson v. Railroad, 104 Mo. 491, "during the trial the attorneys for both parties, as well as the witnesses, speak of the levee as a street and the junction of Gratiot street and the levee as a crossing." It was decided that, such "evidence and the manner in which it was elicited justified the court in assuming that the levee is a street and that Gratiot street intersects it." The case of Downend v. Kansas City, 156 Mo. 60, 56 S.W. 902, it is insisted by defendant controls this case in that it is there held: "Mere user by the public will not establish a street nor enforce on the city the duty to keep it in repair." Plaintiff's case, as we have seen, for the reasons given, does not rest on mere user by the public. We think the...
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