Marshall v. Kansas City, Missouri
| Decision Date | 23 February 1923 |
| Citation | 249 S.W. 82,297 Mo. 304 |
| Parties | CHARLES MARSHALL, by FRED MARSHALL,, His Next Friend, Appellant, v. KANSAS CITY, MISSOURI |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.
Affirmed.
John Hyde, Garrett, Howell & Boley, and Atwood, Wickersham, Hill Levis & Chilcott for appellant.
(1) The admission of the testimony of witness Waddell that no provision was attempted to be made for use of any part of the street across the fill other than the board walk was erroneous, and prejudicial to plaintiff, because said testimony was a conclusion of the witness and, therefore invaded the province of the jury. (a) If the space along the east side of the board walk was within the boundaries of the street, and was habitually used by the public with sufficient knowledge (actual or constructive) on the part of defendant of that fact, defendant was responsible for the maintenance of said space. Benton v. St. Louis, 217 Mo. 687; Coffey v. Carthage, 186 Mo. 573; Beaudeau v Cape Girardeau, 71 Mo. 392; Meiners v. St. Louis, 130 Mo. 274; Maus v. Springfield, 101 Mo. 613; Golden v. Clinton, 54 Mo.App. 100; Stephens v. Macon, 83 Mo. 345; Donoho v. Iron Works, 75 Mo. 401. (b) As the question of whether or not said space was part of a public street and walkway, for the maintenance of which the city was responsible, was one of the ultimate facts in issue, the admission of this conclusion constituted error. Taylor v. Railroad, 185 Mo. 239; Heberling v. Warrensburg, 133 Mo.App. 547; Eubank v. Edina, 88 Mo. 655; Boettger v. Iron Co., 136 Mo. 536; Langston v. Railway Co., 147 Mo. 465; Gutridge v. Railway, 94 Mo. 472; Castanie v. Railway Co., 249 Mo. 192; Ganz v. Ry. Co., 220 S.W. 497; City of Marshall v. McAllister, 22 Tex. Civ. App. 214; Herndon v. Salt Lake City, 34 Utah 65; 22 C. J. 502. (2) The court erred in refusing to permit witness Waddell to testify, on his redirect examination, that at the time he inspected the scene of plaintiff's injury additional boards had been laid in the space to the east of the boards that were there at the time of plaintiff's injury and also that a railing had been constructed at the place. (a) Defendant had taken the initiative in seeking and obtaining similar testimony and testimony as to some of the physical conditions existing there; therefore, defendant waived the witness's incompetency, and plaintiff had a right to complete the inquiry along that line. Hume v. Hopkins, 140 Mo. 75; Nichols v. Nichols, 147 Mo. 403; City of E. Chicago v. Gilbert, 59 Ind.App. 613; State v. Sinigal, 138 La. 469; Larson v. City of Sedro-Woolley, 49 Wash. 134; State v. McKnight, 21 N. M. 14; Simmons v. Accident Assn., 79 Neb. 20. (b) It was competent for plaintiff to show acts of defendant in relation to the place in controversy as bearing on the issues of whether or not said place was part of the street, and, therefore, under the control of defendant, and whether or not defendant recognized responsibility on its part for the maintenance of said place. Benton v. St. Louis, 217 Mo. 709; Wright v. Hines, 235 S.W. 832; Hemphill v. City of Morehouse, 162 Mo.App. 575; Brown v. Borough of Towanda, 24 Pa.Super. 378; Sprague v. Rochester, 64 N.Y.S. 846, 52 A.D. 53. (3) The signed written statement of plaintiff's witness, Low, which plaintiff offered in evidence, was competent. State v. Sharp, 183 Mo. 715; State v. Maggard, 250 Mo. 335. (4) It was error, and prejudicial to plaintiff, to permit defendant to read to the jury excerpts or detached portions of testimony given by plaintiff on a former trial instead of reading the whole of said testimony and reading same in the order in which it was given. Littig v. Heating Co., 237 S.W. 785. (5) The court erred in sustaining the objection to the statement by plaintiff's counsel that defendant had a right to call plaintiff as a witness, and in rebuking counsel for making said statement. Turnbow v. Rys. Co., 211 S.W. 41.
John B. Pew and Ilus M. Lee for respondent.
(1) The court did not err in permitting plaintiff's witness Waddell to say upon cross-examination that a certain photograph of the place disclosed no provision for the use of any part of the street over the fill other than what was provided by the board sidewalk. Ely v. St. Louis, 181 Mo. 723; Colton v. Kansas City, 162 Mo.App. 429; Smith v. City of Marceline, 198 S.W. (Mo. App.) 1116; Robinson v. Kansas City, 179 Mo.App. 211; Williams v. St. Joseph, 166 Mo.App. 299. (2) The court did not err in refusing to allow plaintiff to show certain changes and extensions made in the board walk long subsequent to the date of the accident. (3) The court did not err in refusing to permit plaintiff to read in evidence a written statement of plaintiff's witness Low. Flach v. Ball, 240 S.W. (Mo. App.) 465; Conrad v. Griffey, 52 U.S. 480, 491. (4) There was no error in permitting the defendant to read portions of plaintiff's testimony given on a former trial of the case.
RAILEY, C. Davis and Higbee, CC., concur.
This action was commenced in the Circuit Court of Jackson County, Missouri, on April 23, 1919, by Fred Marshall, as next friend of Charles Marshall, a minor, to recover damages alleged to have been sustained by said minor on March 21, 1918, in falling down an embankment near a wooden sidewalk in Kansas City, Missouri. The plaintiff, at the time of his injury, was between seven and eight years of age. It is claimed that, on the date in question, plaintiff and another boy, Fenton Kirk, some two years younger than plaintiff, were playing upon an embankment made by raising the grade of Spruce Street, a north-and-south street, between Twenty-ninth and Thirtieth streets, east-and-west streets, and that while so playing, as stated in the petition, "a portion of the earth of said way caved, slid, moved and slipped, causing plaintiff to be thrown from his position and to fall from said public way down said embankment."
A ravine crossed Spruce Street at right angles, and as a part of the plan adopted by the city in carrying Spruce Street over this ravine, a large wooden or box culvert was laid across Spruce Street, at the bottom of the ravine, for the purpose of carrying water collected in this ravine across the street. This wooden culvert was high enough to allow a man to walk through it. A photograph shows the culvert to be approximately square. After said culvert was placed in the street, loose dirt, obtained by lowering the grade of Spruce Street at a point south of the ravine, was dumped on either side and upon top of the culvert, thus forming a fill, or embankment, in and along Spruce Street. Under this plan, the grade of Spruce Street was raised to a height of four and one-half feet above the top of the wooden culvert. Spruce Street was not paved over this fill. A five-foot cement sidewalk ran along the east side of Spruce Street to the south edge of the fill. The cement sidewalk was not carried on northward over the fill, because of the impracticability of laying a cement walk on a fill of this depth until it had been allowed to settle, for at least two years. On account of this situation, a sidewalk, consisting of two ten-inch boards, placed side by side, with a space between them of about three-quarters of an inch, was laid from the north terminus of the cement sidewalk, on over the fill. A general idea of the situation was shown by reference to exhibits 3, 5 and 8 offered in evidence (photographs). Exhibit 3 was made with the camera looking south; exhibit 8 is looking north, and exhibit 5 shows the east end of the culvert and the embankment of earth above, down which it is claimed plaintiff fell.
The plaintiff did not testify as a witness at the trial, although he was present throughout the trial. As to the facts surrounding the accident, plaintiff's case rests upon the testimony of the boy, Fenton Kirk. The testimony of the latter on direct examination tended to prove that he and plaintiff were engaged in throwing rocks down the side of said embankment, and over the end of the culvert; that while so engaged, the embankment near the board walk caved in, causing plaintiff to slip and fall down the embankment into the creek. On photograph marked exhibit 3, the Kirk boy pointed out a black dot (made in ink) as marking the place where plaintiff was standing on the east side of the board walk when the embankment caved. On cross-examination the Kirk boy said he and plaintiff had been rolling rocks down this embankment for about an hour; that they carried the rocks from the middle of the street, east of the board walk some three or four feet, and to the place where the slope turns abruptly downward, then turned the rocks loose, "give them a little push" and in that way rolled them down the embankment; that the rocks were heavy to carry; that some of them were as large as a man's head; that they were watching the rocks as they were thrown down; that he had forgotten where plaintiff lit in the fall. The Kirk boy further testified that when the earth caved plaintiff fell on his back, with his head to-ward Thirty-First Street; that while lying still on his back, at a place about two feet from the board walk, he rolled over once to get up, and rolled down the embankment. He further testified as follows:
The evidence in behalf of respondent tends to show that plaintiff and the little Kirk boy got heavy rocks from Spruce Street, carried them across the narrow board walk to or near, the edge of the dump and rolled them down the embankment;...
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