Perrette v. Kansas City

• Decision Date: 23 April 1901
• Parties: PERRETTE v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

62 S.W. 448

162 Mo. 238

PERRETTE v. KANSAS CITY, Appellant

Supreme Court of Missouri, Second Division

April 23, 1901

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

R. B Middlebrook for appellant.

(1) Instruction 1, given by the court at the instance of the plaintiff, in view of the plaintiff's testimony, is erroneous. In its present form, it enables the plaintiff to avail himself of a presumption contrary to what he swears he knew. Nixon v. Railroad, 141 Mo. 439; Brannock v. Elmore, 144 Mo. 65; Roddy v. Railroad, 104 Mo. 150. (2) The court erred in refusing to give instruction 6, offered by the defendant. Spillane v. Railroad, 135 Mo. 427; Henderson v. Railroad, 61 N.Y. 900; Murray v. Railroad, 101 Mo. 236; Kelley v Railroad, 101 Mo. 67; Packet Co. v Vandergrift, 34 Mo. 55; Callahan v. Warne, 40 Mo. 131; Corcoran v. Railroad, 105 Mo. 399; Dougherty v. Railroad, 97 Mo. 647; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 371. (3) The court erred in sustaining the objection of plaintiff's counsel to the question, "I will ask you if the habit of drinking constantly has a tendency to decrease the expectancy," asked by defendant of the plaintiff's witness Park. The plaintiff had testified that he was in the habit of drinking regularly, but not to excess, and the question of the city's counsel was certainly relevant, and the objection to the question ought not to have been sustained by the court. (4) The court erred in giving instruction 4 on behalf of the plaintiff, by means of which instruction the defendant was precluded from utilizing in any way the knowledge of the plaintiff acquired by him before the inquiry, that the sidewalk at the place in question was "in pretty bad shape all the time." Cohn v. Kansas City, 108 Mo. 392. (5) If the defect complained of by the plaintiff was so extremely latent as the witnesses for plaintiff testified it was, then the city was not liable under the law, as settled by this court. In any event, the court should have given instruction 7, asked by defendant. Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317.

Ward & Hadley and Gilmore & Brown for respondent.

(1) The theory of the plaintiff's case was that on the west side of the water plug in the sidewalk in front of the Hageman flats was a piece of one of the boards of the walk extending from the western edge of the walk up to an inch or two of the plug; that this piece rested loose and unnailed on the outside or western stringer of the walk so that it would give way or tip down when stepped upon between the plug and the stringer; that this condition was one not apparent on a casual observation such as one walking along the walk would make, presenting when the board was in place "an appearance of security;" that plaintiff did not know that the board west of the plug was loose, but from such observation as he had made "it was all right as it appeared;" that when he was walking along the sidewalk on the afternoon of August 26, he stepped upon this loose board between the water plug and the outside stringer; that the board went down with him and he was injured, as claimed in his petition. The theory of the defense was that the plaintiff was not injured at the place claimed in the plaintiff's petition, and in fact was not injured on Holly street, and that the defect claimed in the petition, viz., the loose board west of the plug, did not exist on August 26, or at any time prior thereto. These were the two questions of fact submitted to the jury by the evidence of the defendant and the argument of counsel. Both of these questions were decided adversely to appellant by the jury. Skinner v. Stifel, 55 Mo.App. 9; Culverson v. City of Maryville, 67 Mo.App. 343; Roe v. Kansas City, 100 Mo. 190; Franke v. St. Louis, 110 Mo. 516. (2) Assuming, for the purpose of argument, that respondent knew of the particular defect complained of, such knowledge has, by an unbroken line of authorities in the State, been held to constitute no bar to an action based upon an injury caused by such defect. Maus v. Springfield, 101 Mo. 613; Gerdes v. Arch Co., 124 Mo. 347; Chilton v. St. Joseph, 143 Mo. 192. (3) Instruction 4, on behalf of respondent, has been frequently approved by this court, and is a correct declaration of the law. Maus v. Springfield, supra; Flynn v. Neosho, 114 Mo. 567; Chilton v. St. Joseph, supra; Culverson v. Maryville, 67 Mo.App. 343. An insignificant verbal inaccuracy as to "the care of a person ordinarily careful," as distinguished from the "care of a prudent person ordinarily careful," was fully cured by appellant's most favorable instructions 4 and 5 on contributory negligence and the obligations therein set forth, placing upon respondent the obligation to exercise ordinary care and prudence and such care and caution as an ordinarily prudent person under the circumstances would have exercised. Deweese v. Meramec Iron Min. Co., 128 Mo. 423; Dickson v. Railroad, 104 Mo. 491; Shortel v. St. Joseph, 104 Mo. 114; Harrington v. Sedalia, 98 Mo. 583. (4) Appellant complains because its instruction number 7 was not given. This instruction was misleading and erroneous, because it told the jury that if the condition of the sidewalk would not be observed by the city authorities in the exercise of ordinary care, then the plaintiff could not recover. Observation is not inspection. It is the duty of city authorities charged with the inspection of sidewalks to use ordinary care in their inspection, not simply to observe them as might an ordinary pedestrian. Barr v. Kansas City, 105 Mo. 550; Carrington v. St. Louis, 89 Mo. 208; Squires v. Chillicothe, 89 Mo. 226.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

This is an action by plaintiff for ten thousand dollars damages for personal injuries sustained by him by reason of the alleged negligence of defendant in failing to keep its sidewalk in front of 1809 Holly street, in said city, in a reasonably safe condition for pedestrians, in consequence of which he caught his foot in a hole therein, and was injured.

The injury occurred about four o'clock in the afternoon of August 26, 1896, while plaintiff was returning to his home from a business errand. He lived at that time, and had, for about four months prior thereto, at 1847 Holly street, which runs north and south.

The sidewalk was made of boards. An iron pipe, connected with the waterworks plant of defendant city, stood near the middle of this walk in front of 1809 on said street, the top of the pipe standing a little above the level of the walk. Around this iron pipe there was a small excavation about a foot deep, over which the boards of the walk were so laid as to leave an open space of about three and one-half inches between the end of the board on the west side of said pipe, which was loose at its outer and western end, and so insecurely nailed down that when stepped upon at the end next to the pipe it would drop down into the excavation around the pipe. While plaintiff was walking along on the sidewalk at the time of the accident he stepped with his right foot on the loose plank just to the west of the water plug, the plank went down with him, his foot was caught in the hole, and he was thrown down upon the walk, his leg broken, the ligaments of his foot and ankle sprained and lacerated, and the bones of his foot and ankle dislocated. Bandages and splints were first applied, the swelling being so great that a plaster of Paris cast could not be put on. The inflammation around the injured parts became so great in a few days that gangrene set in and plaintiff was compelled to keep his foot in ice water four or five days, during which time he suffered intense pain, and was unable to secure any sleep except under the influence of opiates. A plaster of Paris cast was afterwards applied, which remained on about forty days, and plaintiff was altogether confined to his bed ninety days, suffering constant pain and inability to sleep, the first time that he left his home after the injury being when, with the aid of crutches and an attendant, he got to a buggy and was driven to the place of registration to register for the fall election.

At the time of the injury plaintiff was conducting a machine shop in Kansas City, being one of the four die-makers in the city. Since opening a shop of his own his average earnings had been about twenty-one dollars a week. From the time of his injury up to the time of the trial, nearly fourteen months, he had not been able to make anything, as the condition of his foot and ankle had been such that he could not stand, and in working at his trade it was necessary for him to stand on his feet. The reason of this result seems to have been, according to the testimony of the physicians, largely due to the tearing loose of the ligaments and to the displacing of the heel bone where it unites with the bones of the foot. This had caused the axis of the foot and ankle to become perverted, the ankle to give way or turn out, and the arch of the foot to be destroyed, making the foot a "flat-foot." According to the testimony of the three physicians who treated and examined the plaintiff this condition was a permanent one.

At the time plaintiff was injured he was forty-nine years old, and had always been a strong man.

At the instance of plaintiff and over the objection and exception of defendant, the court instructed the jury as follows:

"1. The court instructs the jury that it was the duty of defendant, Kansas City, to keep the sidewalk on the east side of Holly street, between Eighteenth and Nineteenth streets of said city, in a condition reasonably safe for the use of the public, and the plaintiff had the right to presume that this duty had been performed.

"2. The court...