Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCave
Citation188 S.W.2d 538
PartiesJOSIE MOSES v. INDEPENDENCE, MISSOURI, A MUNICIPAL CORPORATION AND KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION.
Docket NumberNo. 20548.,No. 20561.
Decision Date11 June 1945
188 S.W.2d 538
JOSIE MOSES
v.
INDEPENDENCE, MISSOURI, A MUNICIPAL CORPORATION AND KANSAS CITY PUBLIC SERVICE COMPANY, A CORPORATION.
No. 20548.
No. 20561.
Kansas City Court of Appeals. Missouri.
June 11, 1945.

[188 S.W.2d 540]

Appeal from Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Charles L. Carr and Cowgill & Popham for appellant Kansas City Public Service Co.

(1) Plaintiff was bound by her allegation that the regular bus stop at Lexington and Osage was safe for alighting passengers, and she failed to prove that the bus from which she alighted was not stopped at the regular bus stop there. State ex rel. Boatmen's Nat'l Bank v. Webster Grove Gen. Sewer Dist. No. 1, 327 Mo. 594, 37 S.W. (2d) 905; Creighton v. Missouri Pac. R. Co., 229 Mo. App. 325, 66 S.W. (2d) 980; Morrison v. Painter (Mo. App.), 170 S.W. (2d) 965. (2) Plaintiff was bound by her charge of specific negligence that defendant Kansas City Public Service Company caused her to alight in a deep depression 10 to 12 inches square and 4 to 6 inches deep, and she failed to offer any proof that she was caused to step into such hole or depression, but her proof showed that such hole or depression was under the bus and that she could not have stepped into it. State ex rel. Anderson v. Hostetter et al. (en banc), 346 Mo. 249, 140 S.W. (2d) 21; Gandy v. St. Louis-S.F.R. Co., 329 Mo. 459, 44 S.W. (2d) 634; Bonnarens v. Lead Belt Ry. Co., 309 Mo. 65, 273 S.W. 1043. (3) The trial court erred in overruling and refusing defendant Kansas City Public Service Company's requested peremptory instruction "C" in the nature of a demurrer at the close of all the evidence because only plaintiff testified to her claim that she stepped in a hole, and her testimony was cancelled and became nugatory because of previous conflicting sworn testimony given by her in a deposition which was read at the trial and the discrepancy not having been explained away by her. Steele v. K.C. Southern R. Co., 302 Mo. 207, 257 S.W. 756; Siegel v. Mo. -Kans. -Tex. R. Co., 342 Mo. 1130, 119 S.W. (2d) 376. (4) The trial court erred in admitting in evidence incompetent and highly prejudicial testimony, over the objection of defendants, as to other persons having fallen or stumbled at or near the place where plaintiff fell. Schaefer v. Frazier-Davis Construction Company, 125 S.W. (2d) 897; Coale v. Hannibal & St. Joe R. Co., 60 Mo. 227; Perry v. Ford, 17 Mo. App. 212; Langston v. Southern Electric R. Co., 147 Mo. 457, 48 S.W. 835; Gunther v. Roy, 74 Mo. App. 597; Pryor v. Metropolitan Street Ry. Co., 85 Mo. App. 367. (5) The prejudicial effect of the testimony last referred to was not cured by plaintiff's instruction "1" withdrawing the same from the jury. National Cash Register Co. v. Kay (Mo. App.), 119 S.W. (2d) 437, l.c. 440; Evans v. C.M. & St. P.R. Co. (Minn.), 158 N.W. 335; Anglo-Texas Oil Co. v. Marshall (Okla.), 256 Pac. 740. (6) Plaintiff's instruction "3" was erroneously given in that there was no evidence to support the submission of plaintiff stepping into the deep hole 4 to 6 inches deep and 10 to 12 inches square. State ex rel. Anderson v. Hostetter et al. (en banc), supra; Gandy v. St. Louis-S.F.R. Co., supra; Bonnarens v. Lead Belt Ry. Co., supra. (7) The verdict is excessive and the result of passion and prejudice. Cunningham v. Kansas City, 225 Mo. App. 1063, 38 S.W. (2d) 734; Wair v. American Car & Foundry Co. (Mo. App.), 300 S.W. 1048.

John F. Thice, Clay C. Rogers and Price Wickersham for appellant City of Independence.

(1) The trial court erred in overruling defendant's motion to strike out said testimony. 5 Corpus Juris Secundum, page 1032; Trent v. Lechtman Printing Co., 126 S.W. 38; Evans v. Ry. Co. (Minn.), 158 N.W. 335; Resech v. Columbia, etc., 163 N.Y.S. 453; Anglo-Texas Oil Co. v. Marshall (Okla.), 256 Pac. 740; Robinson v. Bush, 200 S.W. 757; Gauerke v. Kiley, 177 N.E. l.c. 892; Taylor v. Kansas City, 112 S.W. (2d) l.c. 566; Gable v. Kansas City, 50 S.W. 84; Smart v. Kansas City, 91 Mo. App. 686. (2) The trial court erred in giving plaintiff's main instruction. Allen v. Kansas City, 64 S.W. (2d) 765, l.c. 766; Ballard v. Kansas City, 104 S.W. 1126. (3) The verdict is excessive and is the result of passion and prejudice occasioned in large part by the wrongful conduct of the plaintiff. Finney v. Banner Cleaners & Dyers, 126 So. 573.

Schultz & Bodney and Walter A. Raymond for respondent.

(1) The defendants' respective demurrers to the evidence were properly overruled as a submissible case was made against both of said defendants. Caley v. Kansas City et al., 226 Mo. App. 934, 48 S.W. (2d) 25. (a) The evidence made an issue for the jury as to constructive notice to defendant, City of Independence, of the defect which caused plaintiff's injury in time, for it, by the exercise of ordinary care to have repaired the defects and avoided plaintiff's fall and injury. Stewart v. George B. Peck Co., 234 Mo. App. 864, 135 S.W. (2d) 405, 411 (5); Hugg v. City of Marshall, 97 Mo. App. 542, 71 S.W. 477, l.c. 478; Miller v. Town of Canton, 112 Mo. App. 322, 87 S.W. 96, 98(9); Thompson v. City of Poplar Bluff, 124 Mo. App. 439, 101 S.W. 709, 710 (3); Merritt v. Kansas City, 46 S.W. (2d) 275, l.c. 277; Fadem v. City of St. Louis, 99 S.W. (2d) 511, l.c. 515; Ryan v. Standard Oil Co. of Indiana, 144 S.W. (2d) 170. (b) There was not a total failure of proof as to the defendant, Kansas City Public Service Company. There was at the most a mere variance which said defendant waived by not filing the statutory affidavit. Murphy v. Metropolitan St. Ry. Co., 125 Mo. App. 269, 102 S.W. 64, l.c. 65; Caley v. Kansas City, 226 Mo. App. 934, 48 S.W. (2d) 26, 27; Brown v. Alton R. Co., 236 Mo. App. 26, 151 S.W. (2d) 727, l.c. 737; State ex rel. Brotherhood of Locomotive Firemen and Enginemen v. Shain, 343 Mo. 666, 123 S.W. (2d) 1, l.c. 4; Senf v. St. Louis & S. Ry. Co., 112 Mo. App. 74, 86 S W. 887, l.c. 890; Took v. Wells, 331 Mo. 249, 53 S.W. (2d) 389, l.c. 391, 392; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W. (2d) 286, l.c. 290; Nolan v. Metropolitan St. Ry. Co., 250 Mo. 602, 157 S W. 637, l.c. 641; Crawford v. Kansas City Stock Yards Co., 215 Mo. 394, 114 S.W. 1057, 1062. (c) Plaintiff's testimony was not contradictory and self-destructive but its weight and credibility were for the jury. Steele v. Kansas City Southern Ry. Co., 302 Mo. 207, 257 S.W. 756, l.c. 1042; Short v. White, 234 Mo. App. 499, 133 S.W. (2d) 1039, l.c. 1042; Dent v. Dent, 350 Mo. 560, 166 S.W. (2d) 582, l.c. 586. (2) The court committed no error in admitting evidence that other persons had stumbled and fallen while alighting from the bus at this point in the street where this accident occurred. Furthermore such evidence was withdrawn by plaintiff's instruction No. 1 and any possible error in its admission was cured thereby. Taylor v. Kansas City, 342 Mo. 109, 112 S.W. (2d) 562, 566(6); Bornhoft v. City of Jefferson, 118 S.W. (2d) 92, l.c. 99; Wagner v. Kansas City, 186 S.W. 1129 (1); Asbury v. Fidelity Nat. Bank & Trust Co., 231 Mo. App. 437, 100 S.W. (2d) 946, 949 (4); Blackwell v. J.J. Newberry Co., 156 S.W. (2d) 14, 19-21 (9-11); Eth v. Kansas City, 63 S.W. (2d) 203, l.c. 205; Hanson v. City Light & Traction Co., 178 S.W. (2d) 804, l.c. 812; Foulks v. Lehman, 17 S.W. (2d) 994, l.c. 997; Vesper v. Ashton, 233 Mo. App. 204, 118 S.W. (2d) 84, l.c. 88, 89; Lithegner v. City of St. Louis, 125 S.W. (2d) 925, l.c. 930; Monsour v. Excelsior Tobacco Co. (Mo.), 144 S.W. (2d) 62, 66(10). (3) The court committed no error in giving plaintiff's instruction No. "3". Such instruction did not embrace matters outside and beyond the scope of the evidence. Stewart v. George B. Peck Co., 234 Mo. App. 864, 135 S.W. (2d) 405, 411 (5); Karr v. Chicago, R.I. & P. Ry. Co., 341 Mo. 536, 108 S.W. (2d) 44, l.c. 48. (4) The court committed no error in giving plaintiff's instruction "2", submitting the issues against the defendant, City of Independence. Brickell v. Fleming, 281 S.W. 951, l.c. 960; Crews v. Kansas City Public Service Company, 341 Mo. 1090, 111 S.W. (2d) 54, l.c. 58; Goslin v. Kurn, 351 Mo. 395, 173 S.W. (2d) 79, l.c. 84; Johnson v. Hurch Delivery Service, Inc., 351 Mo. 73, 171 S.W. (2d) 656, l.c. 657; Merritt v. Kansas City, 46 S.W. (2d) 275, l.c. 281; Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W. (2d) 119, l.c. 123. (5) The damages awarded are not excessive but constitute very modest compensation for the serious and permanent injuries plaintiff suffered. Westenhaver v. St. Louis-San Francisco Ry. Co., 340 Mo. 511, 102 S.W. (2d) 661, l.c. 665; Merritt v. Kansas City, 46 S.W. (2d) 275; Goodwin v. Wells, 220 Mo. App. 1, 285 S.W. 112, l.c. 113; Thomure v. St. Louis & S.F.R. Co., 191 Mo. App. 640, 177 S.W. 708, l.c. 712; Hurst v. Chicago, B. & Q.R. Co., 280 S.W. 566; 219 S.W. 566, l.c. 568, 569; Cheatham v. Chartrau, 176 S.W. (2d) 865, l.c. 870.

CAVE, J.


This is an action for damages for personal injuries. Plaintiff recovered a judgment against both defendants for $3350. Defendants took separate appeals; but by consent of all parties the appeals were consolidated and will be treated as one case.

According to plaintiff's petition, she was injured October 1, 1941, while alighting from a bus of defendant Kansas City Public Service Company at its stopping place on the south side of Lexington Avenue just west of Osage Avenue in the City of Independence. She charges that Lexington Avenue was paved with asphalt and that for a long time prior to the date of her injury "there was a defect in said street consisting of a rough, wavy, lumpy and uneven raised place and hole or depression on said Lexington Street of the following dimensions and description: Eight feet long in an east and west direction and between one and one-half and two feet in a north and south direction and raised up between four and six inches with a depression surrounding said area. That at the north edge of...

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7 practice notes
  • Kirst v. Clarkson Const. Co., No. 8467
    • United States
    • Court of Appeal of Missouri (US)
    • October 12, 1965
    ...Chicago, B. & Q. R. Co., 211 Mo.App. 460, 245 S.W. 1109, 1113(7). 22 Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 376, 188 S.W.2d 538, 546-547; Hanson v. City Light & Traction Co., 238 Mo.App. 182, 200, 178 S.W.2d 804, 812. See also Stith v. J. J. Newberry Co., 336 Mo. ......
  • Arnold v. Fisher, No. 8085
    • United States
    • Court of Appeal of Missouri (US)
    • August 18, 1962
    ...13, 18(6); Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. See particularly Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 377, 188 S.W.2d 538, 547(15). And, see generally the multitude of cases collected in West's Missouri Digest, Appeal and Error, k...
  • Guy v. Kansas City, No. 43277
    • United States
    • United States State Supreme Court of Missouri
    • April 13, 1953
    ...Mo. 940, 218 S.W.2d 542; Jensen v. Kansas City, 361 Mo. 967, 238 S.W.2d 305. In Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538, 547, the plaintiff stepped in a hole in the pavement as she alighted from a bus. As to the city's liability the condition complained of w......
  • Higgins v. Terminal R. R. Ass'n of St. Louis, No. 42180
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1951
    ...witness at the subsequent trial. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538; Swift v. St. Louis-San Francisco R. Co., Mo.App., 15 S.W.2d Defendant-appellant further contends that neither of plaintiff's 'versions' of t......
  • Request a trial to view additional results
7 cases
  • Kirst v. Clarkson Const. Co., No. 8467
    • United States
    • Court of Appeal of Missouri (US)
    • October 12, 1965
    ...Chicago, B. & Q. R. Co., 211 Mo.App. 460, 245 S.W. 1109, 1113(7). 22 Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 376, 188 S.W.2d 538, 546-547; Hanson v. City Light & Traction Co., 238 Mo.App. 182, 200, 178 S.W.2d 804, 812. See also Stith v. J. J. Newberry Co., 336 Mo. ......
  • Arnold v. Fisher, No. 8085
    • United States
    • Court of Appeal of Missouri (US)
    • August 18, 1962
    ...13, 18(6); Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30. See particularly Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 377, 188 S.W.2d 538, 547(15). And, see generally the multitude of cases collected in West's Missouri Digest, Appeal and Error, k...
  • Guy v. Kansas City, No. 43277
    • United States
    • United States State Supreme Court of Missouri
    • April 13, 1953
    ...Mo. 940, 218 S.W.2d 542; Jensen v. Kansas City, 361 Mo. 967, 238 S.W.2d 305. In Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538, 547, the plaintiff stepped in a hole in the pavement as she alighted from a bus. As to the city's liability the condition complained of w......
  • Higgins v. Terminal R. R. Ass'n of St. Louis, No. 42180
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1951
    ...witness at the subsequent trial. Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538; Swift v. St. Louis-San Francisco R. Co., Mo.App., 15 S.W.2d Defendant-appellant further contends that neither of plaintiff's 'versions' of t......
  • Request a trial to view additional results

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