Lewis v. Kansas City
| Decision Date | 13 June 1938 |
| Citation | 122 S.W.2d 852,233 Mo.App. 341 |
| Parties | CARL LEWIS, BY HIS NEXT FRIEND, J. L. LEWIS, DEFENDANT IN ERROR, v. KANSAS CITY, MISSOURI, PLAINTIFF IN ERROR |
| Court | Kansas Court of Appeals |
Error to Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
Judgment affirmed.
George Kingsley, City Counselor, and John J. Cosgrove, Assistant City Counselor, for plaintiff in error.
(1) The court erred in refusing to give on behalf of plaintiff in error instruction lettered "B" directing the jury to find the issues in favor of Kansas City for the reason (a) Under all the evidence it appears that Hopkins was a general contractor who had exclusive charge of the work, and plaintiff in error is not liable for his negligence. Plater v. Mullins Const. Co., 17 S.W.2d 658; McGrath v. St. Louis, 215 Mo. 210. (b) In lettering this contract plaintiff in error did not know and had no reason to expect that a ditch would be dug in order to repair the lights. Consequently, plaintiff in error could not be charged with notice that such a ditch or hole would be necessary. There is no evidence in the record that plaintiff in error knew, or by the exercise of ordinary care could have known, that the excavation had been left ungarded except by the ladder, a sufficient length of time before plaintiff fell into the hole to have discovered the condition in the exercise of ordinary care. There is positive evidence, as appears in the deposition of Carl Lewis, that the employees of Hopkins were leaving the scene of the work immediately prior to the time Lewis fell into the hole. For lack of such evidence of knowledge on the part of the plaintiff in error the court should have given instruction lettered "B". Plater v. Mullins Const. Co., 17 S.W.2d 658; McGrath v. St. Louis, 215 Mo. 205; Salmon v. Kansas City, 241 Mo. 42; Town of Bellevue v. Rentz, 153 S.W. 732; City of Dawson v McGill, 111 S.E. 75; Stone v. City of Boston, 181 N.E. 746; Evansville v. Senhenn, 47 N.E. 634; Burnham v. Chicago, etc., Ry. Co., 100 S.W.2d 859. (2) Even if the evidence of defendant in error on the question of time were definite and conclusive, still a sufficient length of time had not elapsed to constitute constructive notice. 7 McQuillin on Corporations, p. 230; Miller v. Kansas City, 157 Mo.App. 533; District of Columbia v. Blackman, 32 D. C. App. 32; Chapman v. Macon, 55 Ga. 566; Warsaw v. Dunlap, 112 Ind. 576; Theissen v. Belle Plains, 31 Iowa 118; Hazelrigg v. Frankfort (Ky.), 92 S.W. 584; Canfield v. Newport (Ky.), 73 S.W. 788; Leary v Newburyport, 216 Mass. 225; Butler v. Oxford, 69 Miss. 618; Cohen v. New York, 204 N.Y. 424, 97 N.E. 866; Pemberton v. Albany, 188 N.Y.S. 245; Ferguson v. Waverly, 112 N.Y.S. 891; McFeeters v. New York, 92 N.Y.S. 79; Mosier v. Stroudsburg, 53 Pa.Super. 377; Portsmouth v. Lee, 112 Va. 419; Green v. Reedsburg, 162 Wis. 101; City of Dawson v. McGill, 111 S.E. 75; Jainchill v. Schwartz, 116 Conn. 522; Georgetown v. Red Fox Oil Co., 15 S.W.2d 489.
Harding, Murphy & Tucker for defendant in error.
(1) The court properly refused to give, on behalf of the plaintiff in error, instruction lettered "B" directing the jury to find the issues in favor of Kansas City. (a) There is nothing before this court to review on this writ of error under Assignment I because a writ of error takes up only the record proper. R. S. Mo., 1929, secs. 1034, 1036; Ricketts v. Hart, 150 Mo. 64, 51 S.W. 825; Swem v. Bick, 87 Mo.App. 29; State v. Green (Mo. App.), 76 S.W.2d 432, l. c. 437; State v. Woerner (Mo. App.), 294 S.W. l. c. 425; 4 C. J. S., page 75, sec. 12; Le Bouregeoise v. McNamara, 10 Mo.App. 116; Evans v. Dockins (Mo. App.), 40 S.W.2d 508. (b) Even if the court examines the bill of exceptions as a part of the record proper, Instruction "B" was still properly refused. 1. The reviewing court, in considering ruling on instruction in the nature of a demurrer to the evidence, must view evidence in light most favorable to the plaintiff. Robertson v. Atchison, Topeka & Santa Fe Railway Co. (Mo. App.), 105 S.W.2d 996; Steiner v. Degan (Mo. App.), 101 S.W.2d 519. 2. A municipal corporation has a duty to exercise ordinary care to keep its public parks in a reasonably safe condition. The same rule applies to parks as to streets. Capp v. St. Louis, 251 Mo. 345, l. c. 356, 158 S.W. 616; Carey v. Kansas City, 187 Mo. 715, 86 S.W. 438; Volz v. City of St. Louis (Mo.), 32 S.W.2d 72, l. c. 73. 3. Notice to the city of the dangerous condition is not necessary, where the city authorizes a defect or obstruction by license or contract. Plater v. W. C. Mullins Company (Mo. App.), 17 S.W.2d 658, l. c. 666; Schlinski v. St. Joseph, 170 Mo.App. 380, l. c. 387, 156 S.W. 823; Burton v. Kansas City, 181 Mo.App. 427, l. c. 437, 168 S.W. 889. (2) (a) There is no action of the court complained of under plaintiff in error's second assignment of error, said assignment being merely a bald statement of a legal proposition. Rule No. 17, Kansas City Court of Appeals; Butler v. Equitable Life Assur. Soc. of the U. S. (Mo. App.), 93 S.W.2d 1019. (b) Even if the court treats plaintiff in error's second assignment of error as referring back to the court's refusal to give the instruction in the natrue of a demurrer to the evidence, still there was no error committed because: 1. Even though the requirement of notice to the city was improper, that additional burden placed upon plaintiff by instruction No. 4 of the court below, was satisfied sufficiently to justify the jury in its finding of constructive notice. 2. A municipality is under a positive nondelegable duty to keep its parks in a reasonably safe condition. 6 McQuillin, Municipal Corps., p. 867; Plater v. W. C. Mullins Co., 17 S.W.2d 658; Blake v. City of St. Louis, 40 Mo. 569; Welsh v. City of St. Louis, 73 Mo. 71. 3. The court cannot consider, in determining the sufficiency of the evidence to support the verdict, the deposition of the defendant in error taken when he was six years of age. (a) The witness was incompetent to testify under statute. R. S. Mo., 1929, sec. 1731; State v. Anderson, 252 Mo. 83, l. c. 98, 158 S.W. 817; State v. Jackson, 2 S.W.2d 758, 318 Mo. 1149. (b) The witness, being incompetent to testify, is likewise incompetent in making admissions against interest. Gebhardt v. United Railways (Mo.), 220 S.W. 677. (c) The witness could not be impeached by the plaintiff in error who called him as a witness. Manchester Bank v. Harrington (Mo.), 199 S.W. 242; Beier v. St. Louis Co., 197 Mo. 215, l. c. 235, 236, 94 S.W. 876. (d) Even if the deposition of Carl Lewis was admissible, the jury had a complete right to disregard all of his testimony in said deposition in view of his age, his experience, and lack of foundation laid for the deposition. 4. Opponent's authorities distinguished. Scanlon v. City of Kansas City, 223 Mo.App. 1203, 19 S.W.2d 522, l. c. 525; Miller v. Kansas City, 157 Mo.App. 533, 137 S.W. 998; Canfield v. Newport (Ky.), 73 S.W. 788; Leary v. Newburyport, 216 Mass. 225; Butler v. Oxford, 69 Miss. 618; Cohen v. New York, 204 N.Y. 424, 97 N.E. 866, 39 L.R.A. (N. S.), 985; Pemberton v. Albany, 188 N.Y.S. 245; Ferguson v. Waverly, 112 N.Y.S. 891; McFeeters v. New York, 92 N.Y.S. 79, l. c. 81; Mosier v. Stroudsburg, 53 Pa.Super. 377; Portsmouth v. Lee, 112 Va. 419; Green v. Reedsburg, 162 Wis. 101; City of Dawson v. McGill (Ga.App.), 111 S.E. 75; Jainchill v. Schwartz, 116 Conn. 522, 165 A. 689; Georgetown v. Red Fox Oil Co. (Ky.), 15 S.W.2d 489.
The original action herein was begun in the Circuit Court of Jackson County, Missouri, at Kansas City, by J. L. Lewis as next friend for Carl Lewis, a minor seven years of age, as plaintiff, who is now defendant in error herein, against Kansas City, Missouri, and the Atlas Electric Company, to recover for personal injuries alleged to have been received by said minor from falling into an excavation in Swope Park, a public park in Kansas City, the plaintiff in error herein, and coming in contact with underground, exposed wires therein. There was a judgment and verdict for the plaintiff for $ 2000. After an unsuccessful motion for a new trial, the defendant Kansas City appealed to this court but later dismissed its appeal and sued out this writ of error.
On Saturday morning, July 6, 1929, Mr. Leslie L. Aulgur, superintendent of maintenance of the Park Department of Kansas City, Missouri, was notified by Mr. Hoppe, superintendent of Swope Park, that the lights in the shelter house in the park near the main entrance had gone out. Swope Park is a public park belonging to the plaintiff in error, to which the public generally is invited and has access. The park department at that time had no regular electrician in its employ. Aulgur called a Mr. Hopkins, doing business as the Atlas Electric Company, and told him the lights were out in Swope Park and directed him to go out and make the repairs and get the lights on. He did not know at that time what the trouble with the lights was and what would be required to be done to get them on. Hopkins was given complete control of the work.
The defendant in error's evidence tends to show that, on the following day, Sunday, July 7, two young ladies who were in the park heard a child crying. They looked around but could not see anyone at the time; shortly afterwards, upon starting to leave the park and while walking over to the mall to get to their car, they passed an open ditch and, looking, saw the defendant in error therein. This ditch had been dug by Hopkins in locating the trouble and making the repairs, he having begun work thereon that morning. The defendant in error was hanging by his shoulders through a ladder, which had been laid on top of the ditch. From the time they first heard the cry of the boy to the time they...
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