Lindman v. Kansas City

• Decision Date: 13 April 1925
• Docket Number: 24005
• Citation: 271 S.W. 516,308 Mo. 161
• Parties: LIBA LINDMAN v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

271 S.W. 516

308 Mo. 161

LIBA LINDMAN v. KANSAS CITY, Appellant

No. 24005

Supreme Court of Missouri

April 13, 1925

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

John B. Pew and John D. Wendorff for appellant.

(1) The trial court committed error in overruling appellant's motion in arrest of judgment for the reason that on the whole record the judgment was erroneous, contradictory and self-destructive in character, and the verdict upon which the judgment was based was erroneous, contradictory and self-destructive in character, for the reason that the only cause of action, if any, alleged in respondent's petition against appellant, was founded on the allegations that appellant, was liable for having permitted defendant Carroll, to place in the street an unreasonably great and excessive amount of building material and occupying an unnecessary amount of the street, by forcing plaintiff into the street and into a place of danger, where she was injured by an automobile driven in a negligent and reckless manner by defendant Smiley, and the jury by their verdict in favor of defendant, Carroll, found that there was not an excessive or unreasonable amount of material in the street and that that portion of the street so occupied was not unreasonable or excessive. McGinnis v. Railway, 200 Mo. 347; Baird v. Flour Mills Corporation, 203 Mo.App. 432; Vest v. Kresge, 213 S.W. 167; Whiteaker v Railroad, 252 Mo. 438; Doremus v. Root, 23 Wash. 715; Railroad v. Jopes, 142 S.W. 18; Delaplain v. Kansas City, 109 Mo.App. 107; Polski v. St. Louis, 264 Mo. 258, 462; Hesselboch v. St. Louis, 179 Mo. 505; See also King v. Kaw-Mo. Wholesale Grocery Co., 188 Mo.App 238; Stid v. Railroad Co., 211 Mo. 415; City of Cameron v. Picksley, 211 S.W. 98; State ex rel. Bond v. Fisher, 230 Mo. 325; Polski v. St. Louis, 264 Mo. 462; 23 Cyc. 835. The trial court erred in overruling the peremptory instruction in the nature of a demurrer to the evidence asked by appellant. (a) Kansas City was not guilty of negligence. It was an entirely proper and lawful use for appellant to permit defendant Carroll to make a temporary use of the street by depositing building material therein for use in the construction of the building which was being erected, and Kansas City was not negligent in so permitting the use of said street and in not removing the material and filling up the excavation and restoring the walk on the south side of said street, which fact was also shown by the verdict of the jury in favor of defendant, Martin J. Carroll. Dillon on Municipal Corporations (5 Ed.) sec. 1168; Downey v. Boston, 184 Mass. 20; Hesselbach v. St. Louis, 179 Mo. 505; Press v. Penny and Gentles, 242 Mo. 98; Gorman v. Ry. Co., 255 Mo. 483; Stephens v. Macon, 83 Mo. 345. (b) A municipality is not required to open the entire street and keep all of said street at all times in condition for travel. Marshall v. Kansas City, 249 S.W. 82; Eli v. St. Louis, 181 Mo. 723; Benton v. St. Louis, 217 Mo. 691; Walker v. Kansas City, 99 Mo. 674; Hunter v. Weston, 111 Mo. 176; Baldwin v. Springfield, 141 Mo. 205; Kossman v. St. Louis, 153 Mo. 293; Gorman v. Ry. Co., 255 Mo. 384.

Sanford B. Ladd, Porter B. Godard, Achtenberg & Rosenberg and John G. Park for respondent.

(1) The law of this case is in Shafir v. Sieben, 233 S.W. 419. (2) The city owed the public, including the plaintiff, the primary, non-delegable duty to exercise ordinary care to keep the sidewalk in a reasonably safe condition. Welsh v. St. Louis, 73 Mo. 74; Boyd v. Kansas City, 291 Mo. 643; Stifel v. St. Louis, 181 S.W. 582; Ford v. Kansas City, 181 Mo. 148; Vogelgesang v. St. Louis, 139 Mo. 127; Long v. Moon, 107 Mo. 334; Russell v. Columbia, 74 Mo. 490; Norton v. St. Louis, 97 Mo. 541; Shafir v. Sieben, 233 S.W. 423. (3) The city was negligent. Shafir v. Sieben, 233 S.W. 423; Boyd v. Kansas City, 291 Mo. 622; Gerdes v. Iron Co., 124 Mo. 355, 359. (4) The verdict in favor of Carroll does not absolve the city. (a) Such verdict is erroneous, and the product of erroneous instructions. (b) Such verdict could, in no event, conclude the issue between plaintiff and the city. Wiggin v. St. Louis, 135 Mo. 568; Kiefer v. St. Joseph, 243 S.W. 109; Donoho v. Vulcan Iron Works, 75 Mo. 405; West v. Kresge Co., 213 S.W. 167. (5) A municipality is not required to open an entire street, but when it does open and improve such street, or any part of it, for travel, it must thereafter exercise ordinary care to keep such improved portion in reasonably safe condition. Marshall v. Kansas City, 249 S.W. 85; Ely v. St. Louis, 181 Mo. 723; Benton v. St. Louis, 217 Mo. 687; Walker v. Kansas City, 99 Mo. 652. (6) The city's negligence was a proximate cause of plaintiff's injury. Shafir v. Sieben, 233 S.W. 424; Daneschocky v. Sieben, 195 Mo.App. 478. (7) Plaintiff's first instruction proper. Adelman v. Altman, 209 Mo.App. 583.

OPINION

Woodson, J.

The plaintiff instituted this suit in the Circuit Court of Jackson County against the defendant to recover $ 80,000, damages for personal injuries sustained by her, through the alleged negligence of the defendant, Kansas City, and others named in the pleadings and evidence.

The case was tried before the court and jury, which resulted in a verdict and judgment in favor of the plaintiff for $ 27,500. After moving unsuccessfully for a new trial, the defendant duly appealed the cause to this court.

While the record in the case is voluminous, covering about 525 printed pages, yet the questions of fact and propositions of law presented for determination have, by the labor, skill and ability of learned counsel for the respective parties, been reduced to a comparatively limited scope. Counsel for each party have filed briefs, statements of facts, and assignment of errors, and while there is little, if any, substantial difference in their respective statements of the case, yet we have substantially adopted that of counsel for respondent for the sole reason that it is a little fuller and shows more clearly the issues presented by the pleadings, and the facts established by the evidence.

The injury complained of occurred on Fifteenth Street, near Troost Avenue, in Kansas City, by an automobile having been run at a high rate of speed upon and against the respondent, at the time and in the manner hereinafter to be stated. The allegation of the petition is as follows:

That Fifteenth Street running east and west is intersected by Troost Avenue running north and south; both largely traveled, and upon the roadway of Fifteenth Street before the ninth of January, 1916, automobiles frequently ran at high, reckless and dangerous rates of speed, rendering the driveway thereof dangerous to pedestrians. That the Altmans were and for a long time had been owners and in possession of lots at the southeast corner of Troost Avenue and Fifteenth Street, having a frontage on the south side of Fifteenth Street of about 91 1/4 feet; that there had been immediately in front of said real estate a safe and commodious sidewalk; that some time before said day the Altmans began the construction of a large building on said real estate and they and defendant Carroll removed said sidewalk and dug away and excavated to a great depth all the ground between the property line and the curb upon which said sidewalk had been located, so that it was impossible for pedestrians to use as a way for travel the place where said sidewalk had been located; that before said day they did negligently place and maintain on the outside and immediately north of the curb a line of obstructions extending the whole length of the frontage, consisting of tool house, cement mixer, sand, rocks and lumber and other building material, the quantity of which was so unreasonably great and excessive as to constitute a wholly unnecessary obstruction of the street.

That there was and had been in force Ordinance No. 8499, approved May 26, 1911, which provided that no person should make any cuts or excavations in or under any street, sidewalk or public place for any purpose whatever, without a permit therefor being first obtained from the superintendent of street repairs; that the said excavation where the sidewalk had been was made without first having obtained any such permit.

That on said day there was in force Ordinance No. 5763, approved August 10, 1910, which provided that no person should deposit upon any portion of any street, sidewalk or public place, building material for any building being erected on abutting property so long as there should be room upon such property for such building material; that if there was not sufficient room upon the property for the deposit of such material, then upon application to the commissioner of street cleaning, a permit might be granted. That the said two Altmans and the defendant Carroll had not obtained any such permit and were guilty of a violation of said ordinance.

Said excavation, tool house, mixer, broken rock, lumber and other material were unlawful obstructions in said sidewalk and in said Fifteenth Street and as such constituted a nuisance in a public highway.

That the said two Altmans and Carroll were also guilty of negligence in failing to provide a passageway on the south side of said building material, tool house and mixer for the use of pedestrians who desired to travel in front of said property; that by their failure to do so such pedestrians including plaintiff, were forced to walk north of such building material, etc., so deposited, and were thereby unnecessarily exposed to the danger of being run over and injured by automobiles and other vehicles driven upon the south side of said Fifteenth Street. That the said two Altmans and Carroll were required by building permit issued January 6, 1916, and Or...