Plater v. Mullins Const. Co.
| Decision Date | 29 April 1929 |
| Docket Number | No. 16179.,No. 16177.,16177.,16179. |
| Citation | 17 S.W.2d 658 |
| Parties | LAVINA PLATER, RESPONDENT, v. W.C. MULLINS CONSTRUCTION CO. AND KANSAS CITY, MISSOURI, APPELLANTS. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Charles R. Pence, Judge.
REVERSED AND REMANDED.
Harry G. Kyle and Walter A. Raymond for respondent.
John T. Barker and Milton J. Oldham for Kansas City.
Fyke, Hume & Hall for Mullins Construction Co.
This is a suit for personal injuries against the city of Kansas City, Missouri and W.C. Mullins Construction Company jointly, for injuries received by plaintiff while riding with her husband in a Ford automobile on Twenty-Sixth street in Kansas City, Missouri. The petition alleged that the defendant construction company negligently placed a pile of shale on the roadway of Twenty-Sixth street near its intersection with Colorado avenue and negligently permitted the same to remain at that place and negligently failed to place a light of any kind on the pile of shale to warn persons using the street at night of the obstruction and negligently failed to place a light of any kind in the vicinity of the pile of shale so it would be visible to persons using the street at night. Defendants filed separate answers which were general denials and pleas of contributory negligence.
There was evidence to the effect that the W.C. Mullins Construction Company was a corporation engaged in paving streets; that at the date of the injury complained of there was in existence a contract between the defendants providing for the paving of one block of Colorado avenue in Kansas City between Twenty-Sixth and Twenty-Seventh streets; that there was no street light at the intersection of Twenty-Sixth street and Colorado avenue, and that the nearest street light in any direction was one block away. At the time of the accident defendant construction company was preparing to pave under its contract with the city, and pursuant thereto had put some crushed rock on the south side of the paved part of Twenty-Sixth street, just west of the intersection of that street with Colorado avenue. This pile of rock extended about fifteen feet north of the south curb line of Twenty-Sixth street and was about three feet high at the highest point and sloped in all directions. The evidence showed that Twenty-Sixth street was twenty-six feet in width from curb to curb, and that there was no warning light upon the pile of rock. The evidence most favorable to plaintiff was to the effect that the rock had been dumped on that street for two whole days before the accident. Defendants' evidence was to the effect that the construction company had just finished another paying job on December 24, 1923, from which some crushed rock was left over, and that at about five-thirty or six o'clock of the evening of that day they had moved the rock to the point where the accident occurred. At about thirty minutes after eight o'clock on the evening of December 24th plaintiff was riding west on Twenty-Sixth street on the right-hand side, but near the center of the street in a Ford touring car. The car was driven by her husband. The plaintiff's testimony is to the effect that the lights upon the car were good and burning and that the brakes were in good condition. The left front wheel of the automobile struck the pile of rock, the car was overturned and plaintiff was injured. The testimony most favorable to plaintiff was to the effect that the pile of rock was practically the same color as the pavement. The plaintiff's husband testified that it was a dark night, but upon cross-examination he stated that he believed that there was a full moon that night. The plaintiff testified that the night was dark, but that she did not know whether there was a full moon that night or not. There is evidence in the record as to the incline or grade of the street, but there is no evidence that the grade was such as would prevent the lights of the automobile from shining upon anything in front of the car, and we therefore omit that evidence from the statement. The plaintiff's husband testified that he could see a block ahead of the automobile by reason of his lights, but both he and the plaintiff testified that on the night of the injury they were both looking ahead and did not see the pile of rock before they ran into it. There was a sharp dispute as to the extent of the plaintiff's injuries. During the trial the defendants offered Dr. James A. Horigan as a witness. He stated that he made an examination of the plaintiff about three weeks before the time of the trial. He was then asked to state what his findings were. He answered: "I did not find anything." Thereupon, Judge KYLE, the attorney for plaintiff, interposed an objection. Since there seems to be a misconception as to the scope and basis of the objection we set out the proceedings in detail:
The plaintiff was then recalled to the stand and she testified as follows:
CROSS-EXAMINATION BY MR. FYKE.
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