Luckey v. Kansas City
| Decision Date | 07 April 1913 |
| Parties | J. E. LUCKEY, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED (conditionally).
A. F Evans, F. M. Hayward, and J. W. Garner for appellant.
(1) The court below erred in not sustaining the demurrer to the evidence because no competent evidence was submitted showing respondent to have been injured by an obstruction in a public street. Fowler v. Elevator Co., 143 Mo.App. 422; Sheldon v. Railroad, 29 Barb. 226; Oglesby v Railroad, 177 Mo. 272; Byerly v. Consolidated Co., 130 Mo.App. 193. (2) The court below erred in giving instruction 4 asked by respondent because it is not supported either by the pleadings or the proof. Knight v Kansas City, 113 Mo.App. 561; Smoot v. Kansas City, 194 Mo. 513. (3) The court below erred in rejecting the city ordinances showing that no vehicle was permitted to be driven on the streets of Kansas City without a license being paid for such use, and evidence offered by appellant that respondent had no such license covering the time of his injury--because such evidence showed respondent to have been a trespasser who could not maintain an action against the city. Dudley v. Northampton, 89 N.E. 25 202 Mass. 306; Williams v. St. Joseph, 166 Mo.App. 299, 148 S.W. 459; Feeley v. Melrose, 81 N. E. (Mass.) 306; Feeback v. Railroad, 167 Mo. 206; Carrier v. Railroad, 175 Mo. 470; Fry v. Railroad, 200 Mo. 377; Youmans v. Railroad, 143 Mo.App. 393; O'Donnell v. Railroad, 197 Mo. 110; Hull v. Railroad, 219 Mo. 555.
Thad B. Landon and John D. Wendorff for respondent.
(1) It was conclusively shown that the injuries received by respondent were the result of the negligence of appellant in permitting the obstruction to remain in the street. Hence, no error in overruling the demurrer to the evidence. Authorities cited by the appellant. Nepher v. Woodward, 200 Mo. 179. (2) Instruction No. 4 was abundantly supported by the evidence. Nelson v. Railroad, 113 Mo.App. 659; Jennings v. Swift & Co., 130 Mo.App. 391; Young v. Railroad, 126 Mo.App. 1. (3) The violation of sections 142 and 143 of the ordinances was not the proximate cause of the injury, therefore constitute no defense. These ordinances are revenue measures. St. Louis v. Green, 7 Mo.App. 468, 70 Mo. 562; State v. Distilling Co., 236 Mo. 248; State v Dix, 159 Mo.App. 573; St. Louis v. Knox, 74 Mo. 79; Columbia v. Samuels, 164 Mo.App. 92; St. Louis v. Weitzel, 130 Mo. 600; U. S. v. Fout, 123 F. 627; 28 Cyc. 1417; 29 Cyc. 525; Weller v. Railroad, 120 Mo. 635; Phelan v. Paving Co., 227 Mo. 711; Reed v. Railroad, 50 Mo.App. 504.
--This is an action against Kansas City to recover damages for personal injuries plaintiff sustained while driving on Brooklyn avenue, one of the public streets. A trial in the circuit court resulted in a verdict and judgment for plaintiff in the sum of $ 4500, and the cause is here on the appeal of defendant.
Brooklyn avenue is a paved street forty-two feet wide between the curb lines. Two street car tracks occupy a space fourteen feet wide in the middle of the pavement, leaving a space for vehicles fourteen feet wide on each side of the tracks. The owner of a house on the east side of the street in the block between Twenty-sixth and Twenty-seventh streets had caused a pile of material for the laying of a granitoid walk on his premises to be deposited and left in the street near the curb line and extending three or four feet towards the car tracks. The pile had been allowed to remain in that place ten days or two weeks before the date of the injury and, being composed of sand, gravel and cement, had become a hardened cohesive mass.
Plaintiff, the owner of a two-horse ice wagon, drove north on the east side of the pavement at about five o'clock in the morning of September 13, 1910. The morning was misty and somewhat dark and he did not see the obstruction owing to the poor light and the absence of any warning signal. He was driving down grade and near the place of the injury met a bread wagon coming south along the east side of the pavement. The bread wagon turned to the west a little and plaintiff drove near the curb. The east wheels of his wagon ran over the pile of material tilting the wagon and throwing him to the pavement. Counsel for defendant argue that plaintiff was not injured in the manner just stated and that his own evidence shows that his injury was caused by a collision with the bread wagon which occurred about 100 feet north of the obstruction. We think this conclusion is based on a misunderstanding of the evidence of plaintiff which clearly shows that there was no collision between the two wagons and that plaintiff's fall was caused in the manner described. It appears that the team stopped about 100 feet north of the pile and that plaintiff was assisted by the driver of the bread wagon to a place on the sidewalk near the team. Witnesses who lived in nearby houses were aroused by the unusual noise and by the groans of plaintiff and looking out of their windows saw plaintiff in the place to which he had been removed. From their testimony and from the obviously inadvertent statement of plaintiff in using the word "west" where he meant to say "east," we are asked to disregard all that part of the testimony of plaintiff and the driver of the bread wagon tending to show that plaintiff was thrown from his seat by the collision of the wagon with the obstruction in the street, and to say as a matter of law that the injury must have occurred at another place and in another manner. This is not an instance, as defendant contends, where the evidence of plaintiff leaves the jury in the field of conjecture and speculation as to the cause of the injury. The evidence, rightly understood, points to the pleaded negligence of defendant as the proximate cause and that negligence was the act of leaving an unguarded obstruction in the street after defendant had actual knowledge of its presence in time to have removed it or, at least, to have placed a warning signal light upon it, had reasonable care been exercised.
But it is argued by defendant that plaintiff was a trespasser on the street and defendant did not owe him the duty of reasonable care. Defendant offered in evidence an ordinance of the city which provides: ...
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