Powers v. Kansas City

• Decision Date: 20 May 1929
• Docket Number: No. 16618.,16618.
• Citation: 18 S.W.2d 545
• Parties: POWERS v. KANSAS CITY.
• Court: Missouri Court of Appeals

18 S.W.2d 545

POWERS v. KANSAS CITY.

No. 16618.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Nannie Powers against Kansas City. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John T. Barker, Marcy K. Brown, Jr., and Arthur R. Wolfe, all of Kansas City, for appellant.

Forsee & Forsee, of Kansas City, for respondent.

BARNETT, C.

This is an action for personal injuries. The original petition was filed in the circuit court of Jackson county on August 19, 1925. An amended petition was filed on February 9, 1928. The original petition nowhere appears in the abstract of record. The amended petition alleges that on or about the 25th day of December, 1923, plaintiff, as a pedestrian, was on a sidewalk crossing a bridge over the Blue river in Kansas City, Mo.; that the city had for a long time prior thereto negligently permitted the sidewalk to become out of repair, in this, there was a hole in the sidewalk about 1½ feet wide and 2 or 3 feet long which the city had negligently permitted to remain for several weeks, and that defendant knew or by the exercise of ordinary care could have known of the existence of the hole in time by the exercise of ordinary care to have repaired the sidewalk; that defendant negligently failed to light the bridge or sidewalk so that the pedestrians could safely use the sidewalk at that time; that the defendant stepped into the hole and was injured.

It was further alleged that on or about the 1st day of February, 1927, plaintiff undertook to visit a neighbor, and that while she was ascending a flight of stairs her injured left leg gave way solely on account of the injury she received upon the sidewalk, and that by reason of her left leg giving away plaintiff fell and broke her right leg, ankle, and foot, and sprained, tore, and bruised the ligaments and muscles thereof; that the injury to her right leg is permanent and was caused solely by the injury to her left leg when she fell into the hole upon the sidewalk.

The answer was a general denial and a plea of contributory negligence. The jury returned a verdict for the plaintiff in the sum of $7,500. A motion for new trial was filed and overruled, and defendant appealed.

The evidence most favorable to plaintiff was to the effect that on Christmas Day, 1923, at about 6 o'clock in the evening, plaintiff was crossing a bridge over the Blue river. There was a space of about 3 feet on the south side of the bridge that was constructed as a sidewalk. The floor was constructed of planks. There were no lights upon the bridge and it was dark at the time, although there was dim light from certain buildings in the vicinity. Plaintiff stepped into a hole which was about 12 inches across and which was about 8 or 10 feet from the end of the bridge. The bridge was a little more than 200 feet long. Some of the witnesses said that the bridge was in a bad condition all the way across, and others said that there were holes at various places in the bridge. The hole into which plaintiff stepped was caused, as one witness said, by the fact that a plank in the floor was missing. Others said that it was due to the fact that two planks, each 6 inches wide, were missing. There was evidence that this was the only hole which was big enough for plaintiff to step into. The evidence shows that the plaintiff was stunned and that the skin was scraped off of her leg just over the shin bone. She treated the injury herself with arnica and Sloan's liniment and by the application of towels. She finally consulted her doctor, who told her to continue the treatment the same as she had done. The point of injury continued to be tender and sore, and finally an ulcer broke out at the place of injury which was treated by a physician. After she had been treated for a time the ulcer healed over, but the place of injury remained tender. One of the doctors testified that the running sore indicated that there had been an injury to the bone.

Plaintiff had had kidney and bladder trouble before her injury for which she had received a long course of treatment. She had apparently recovered from this trouble at the time she received her injury, but after she received her injury the kidney and bladder trouble returned and has never since been cured. The plaintiff testified that she had had trouble with her hearing since she was five years old, but that her defective hearing had become worse since her injury. She also testified that she had worn glasses for 19 years, but that her eyesight had become worse and had troubled her since the time of her injury. She also testified that she had not had her glasses changed for 5 years before the time of the trial; that since the time of the injury her left leg was weak and would give way, and by reason of this fact she had fallen a number of times.

In 1927 she went to visit a friend and in ascending a flight of stairs her left leg gave way and caused her to fall. In this fall she received a Pott's fracture of the bone of the right leg at its termination at the ankle. The fracture was set by physicians, but in attempting to push the bone back into its proper place the physicians pushed the bone in too far, so that there has been a faulty union which interferes with the use of plaintiff's right ankle and foot. One physician testified that in his opinion the faulty union could be corrected or partly corrected by an operation. Another physician testified that he did not know whether the operation would correct the condition or not; that the operation would be a serious matter because, on account of plaintiff's age, there was likelihood of an infection; that if an infection should follow the operation it would result in a permanently stiff ankle. Plaintiff testified that she had been unable to work since her injury, but she had ceased to work for wages some time before her injury.

When the plaintiff's attorney put the first witness upon the stand who testified in regard to the injury to the right leg, plaintiff's attorney completed the examination concerning the second injury without any objection upon the part of defendant. Defendant's attorney then asked a few questions upon cross-examination concerning the second injury, and then said: "If the court please, I would like to make this objection; that the testimony of this witness in regard to this second accident be stricken from the record because the witness did not know the plaintiff in this case prior to this accident and subsequent to the former accident in this case for such a remote time as to be unable to testify from his own knowledge. There is no connection between the two, there has been no connection between the two shown by any witness up to this time, no cause of connection has been shown by this witness or any other."

This motion was overruled by the court, after which the attorney for the city continued to examine the witnesses concerning the second injury. Thereafter, much evidence was introduced concerning the second injury, and from time to time the defendant's attorney would ask questions concerning the second injury. After the motion to strike out was overruled and while one of the physicians was testifying concerning the second injury, the attorney for defendant stated: "I understand all this evidence respecting the right leg is subject to being connected up, it being a pure question of law and subject to a later ruling." The court said: "Yes, sir, of course, it has to be connected up or it could not be competent." Much further testimony concerning the second injury was introduced, and then the attorney for the defendant made this objection: "At this point, Your Honor, we wish to object to the doctor testifying to anything pertaining to the plaintiff's right leg or injury supposed to have followed her second fall, for the reason that the second fall and injury are too remote and speculative and not connected up, no causal connection between that and the claimed first fall." The court said: "Overruled, I will determine about that later on." Much more testimony was introduced, and then, while another physician was on the stand, the following occurred:

"Q. You may examine — wait a minute. Doctor, will you state to the jury whether or not the injury which you found to her left leg and to the sacroiliac, that portion that pertains to the spine or the column, is of such a nature that it could have caused her to have fallen and given way in going up the steps as she was going up, and causing her to have that fall?

"Mr. Ryland: I object to that as highly improper in form as a hypothetical question, it does not contain the facts in evidence and omits other facts in evidence in the framing of the question. It is vague, indefinite and uncertain. The injuries mentioned here are of two different examinations over a period of time. There is nothing in the hypothetical question about the woman's previous physical condition.

"Mr. Forsee: I am not asking a hypothetical question.

"Mr. Ryland: And, furthermore, the question invades the province of the jury.

"The Court: As I understand, the question is inquiring about something that I had ruled out, that is in regard to the sacroiliac joint.

"Mr. Forsee: No, I did not aim to do it at all. I said omitting the sacroiliac joint and considering only that portion as part of the spinal column.

"The Court: Overruled.

"To which action and ruling of the court defendant then and there at the time duly excepted. (Question read by the reporter.) Omitting the sacroiliac joint, it connects with the hip bone? A. Yes, it could."

The plaintiff introduced in evidence a notice of the injury addressed to the mayor of Kansas City which stated that plaintiff's injuries were "caused by reason of the defective condition of the board sidewalk for foot passengers on the south side of said bridge, two of said boards having been broken or displaced." When...