Lindsay v. Kansas City

• Decision Date: 06 March 1906
• Parties: LINDSAY v. KANSAS CITY.
• Court: Missouri Supreme Court

93 S.W. 273

195 Mo. 166

LINDSAY v. KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. MUNICIPAL CORPORATIONS — DEFECTIVE STREETS — NEGLIGENCE — ABSENCE OF GUARDS — EVIDENCE.

In an action for injuries to a person riding along a city street at night, by the vehicle being precipitated into an excavation in the street, evidence held sufficient to sustain a finding that the excavation was not guarded either by lights or barriers.

2. SAME — LIABILITY OF CITY.

Where an excavation was dug in a city street for the purpose of connecting water pipes with an adjoining building under the city's authority and consent, the city was liable for injuries to a traveler on the street, who was injured without contributory negligence on her part by a failure of the persons making the excavation to guard it by lights and barriers.

3. DAMAGES — PERSONAL INJURIES — INSTRUCTIONS.

Where, in an action against a city for damages sustained by a defect in a street, plaintiff alleged that by reason of her injuries she had been compelled to lose her means of livelihood for the month following the date of her injury to her damage in the sum of $30, and would in the future be compelled to lose her means of livelihood, to her damage in the sum of $5,000, an instruction submitting to the jury the damages plaintiff had suffered up to the time of the trial, as well as those she would suffer on account of her injuries in the future, did not authorize a recovery beyond that prayed.

4. EVIDENCE — ILLNESS — DECLARATIONS.

In an action for personal injuries, evidence of a nonexpert with whom plaintiff had lived that plaintiff complained of pains in her back was admissible as original evidence.

5. APPEAL — PREJUDICE.

Where a physician and another witness were permitted without objection to testify that plaintiff complained of pains in her back, defendant was not prejudiced by the admission of similar evidence given by another.

6. EVIDENCE — CONCLUSIONS.

In an action for injuries, an answer of a witness that plaintiff had been able to work very little since the accident, and that the witness did not think she had worked steady at all since the accident, was not objectionable, as a conclusion or opinion of the witness.

7. DAMAGES — EXCESSIVENESS.

Plaintiff, a young woman of splendid health prior to her injuries, dependent on her own labor for a livelihood, and earning $12 a week as a linotype operator, was injured by a defect in a city street. Her right elbow was dislocated causing an injury likely to be permanent, and she received many bruises and contusions on her head and body. At the time of the trial, 18 months after her injury, she had been unable to work more than a day or two, or perhaps three days at a time, and was compelled to give up a good position. She lost from 30 to 40 pounds of flesh, and suffered pains in the back of her head which a physician testified were the natural result of her fall from the carriage. Held, that a verdict in her favor for $5,000 was not excessive.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Clara Lindsay against the city of Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

Edwin C. Meservey and Francis M. Hayward, for appellant. Ralph S. Latshaw and Jno. S. Blackwell & Son, for respondent.

GANTT, J.

On the 27th of September, 1901, the plaintiff, Miss Clara Lindsay, commenced action for damages for personal injuries against Kansas City. In her petition she alleges that Kansas City is a municipal corporation organized under a freeholders' charter, and that Southwest Boulevard is one of the streets in said city used by the general public for the purpose of travel. It is then alleged that prior to and on the 13th day of July, 1901, the said city carelessly and negligently failed and neglected to place and maintain barriers, lights, or others warnings at or near a hole in said Southwest Boulevard to warn persons lawfully using said street, of said hole and said defects and dangers. It is then alleged that on the night of July 13, 1901, at about 10:30 o'clock, plaintiff was lawfully riding in a carriage in a southwesterly direction between Twenty-Eighth and Twenty-Ninth streets, and the carriage in which plaintiff was riding, ran against and into said hole in said street and was overturned, and plaintiff precipitated therefrom with great force and violence onto the pavement, and her right elbow dislocated and her shoulder bruised and sprained and her neck and back and spinal column wrenched and strained, and plaintiff was injured in her internal organs; that on account of her injuries, she had been compelled to obligate herself for large sums of money for doctors and surgeons and nurse hire, and will, as long as she lives, be compelled to obligate herself for large sums of money, to wit, $300; that on account of said injuries plaintiff has suffered, and will, so long as she lives, suffer great physical pain and mental anguish, and on account of said injuries was compelled to lose her means of livelihood for the month following said 13th day of July, 1901, to her damage in the sum of $30, and will in the future be compelled to lose her means of livelihood to her damage to the sum of $5,000. The answer was a general denial and a plea of contributory negligence on the part of the plaintiff, and on the part of the driver, who was in charge of the carriage at the time plaintiff was hurt. A change of venue was awarded to the Lafayette county circuit court. In that court the cause was tried to the court and a jury and resulted in a verdict of $5,000. In due time motions for new trial and in arrest were filed, heard, and overruled, and the defendant appealed to this court. On the trial the testimony tended to establish the following facts: The plaintiff was a single lady about 30 years of age, and had for 6 years previous to the injuries of which she complains been working constantly at her trade of linotype operator, earning $12 a week. On the night of July 13, 1901, she, and her landlady, with whom she was boarding, and two gentlemen friends, started in an open hack about 8:35 o'clock, to take a drive. They stopped at the corner of Fifth and Delaware streets in Kansas City and got two bottles of beer and then drove to the corner of Ninth and Broadway, where they took in another gentleman, and then drove down Broadway and thence along the Southwest Boulevard until they reached a point about half way between twenty-eighth and twenty-ninth streets, where, as the evidence tends to show, there was an excavation dug in the street by a plumber to connect the building of a Mr. Hummer with the water main in the street. The work was being done for Mr. Cotter, a plumber in the city. The plumber's workmen had been engaged for nearly a week in excavating the trench to make the water connection. Southwest Boulevard was paved with asphalt, and this hole was cut across the driveway and was about 6 feet wide and between 7 and 8 or 10 feet long and about 6 feet deep. The dirt from this hole was thrown on one side and the rock on the other.

The great controversy in the case arose over the question whether this hole or excavation in the street was lighted with lamps or lanterns that night so as to apprise the drivers of vehicles along the Boulevard of the presence of this hole. The evidence on the part of the plaintiff was to the effect that there were neither danger signals nor lights or any kind of barricades or ropes to warn the traveling public of the danger. Mr. C. O. Shepard testified that he was a clerk in the store of Emery, Bird & Thayer, and on the evening of the accident, about 8 o'clock, he passed along Southwest Boulevard in a street car, and by this excavation, and noticed the hole as he passed by, and he was sitting next to the window, and the window was open; there were no lights or barricades about the hole when he passed there. Mrs. Furnkas, who was in the carriage with plaintiff when the injury occurred, testified there were no lights or barricades about the hole into which the hack and horses fell. She testified that immediately after the hack fell into the hole, the parties there looked around and there was no sign of lights and barricades; that she was there before the firemen came to take the horses out of the hole. Mr. Woodcock, witness for the plaintiff, testified that he was in the barber shop about 150 feet from the hole in the ground on the night of the accident, and some persons came into the shop and called for a light saying there had been an accident there at the hole; that he took one of the bracket lamps off of the wall of the barber shop, and carried it over where the hole was, and there was a horse down in there. He described the hole as about 5 or 6 feet wide and 10½ feet long and about 10 feet deep; he supposed the hole had been there for possibly a week before the night of the accident. Asked if there were any lights or barricades there that evening, he said he could not say, he did not notice any, but there were none there when he went over with the light from his shop; "there was not any lights there is the reason they came over for a light at his shop." Obed Reeve testified that he passed this hole at about 7:30 o'clock, or a little later that night, and there was no light there then. Don E. Leland, who was in the carriage at the time the plaintiff was injured, testified that it was very dark, there was nothing there to show that there was an excavation in the street, no lights, no barricades, and no danger signals of any kind. Harry Crowder, another of the passengers in the hack, testified there was no lamp or light or barricades about the hole, until some one after the accident brought a light from across the street. The driver, Frank Costello, testified it was a very dark night, and that he did not notice any hole or any lights or barricades to warn him as he was driving along the Boulevard, and when...