Proctor v. Garman
| Decision Date | 26 January 1920 |
| Citation | 218 S.W. 910,203 Mo.App. 106 |
| Parties | BARBARA PROCTOR, Respondent, v. CHARLES GARMAN, Defendant, Respondent, and KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Daniel E. Bird, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
C. R Leslie, Atwood, Wickersham, Hill & Popham for respondent.
John J Coull for Garman; E. M. Harber & A. F. Smith for appellant.
This is a suit for damages for personal injuries alleged to have been caused by plaintiff falling upon an accumulation of ice on a public sidewalk in Kansas City, Missouri. The petition alleged that the defendants, Charles Garman and Belle Garman, were the owners of certain improved real estate in Kansas City, Missouri; that upon said premises, and immediately abutting the paved sidewalk in question, said defendants maintained a small garage about ten feet in width; that the owners of said garage "maintained drain pipes or spouts on the said garage which extended downward on said garage to within a few inches from the level of said sidewalk, and thence outward a few inches near the edge thereof so that water from the roof of said garage would and did by reason thereof run out over said sidewalk in front of said garage at said place, and for a long time, namely, several weeks, prior to the 17th day of January, 1918, there was, by reason of said facts, upon said sidewalk immediately in front of said garage, an uneven and dangerous accumulation, coating, and ridge and ropes of ice one to several inches in depth and one to several feet in width extending over and upon said sidewalk," which was caused "by reason of the natural precipitation and by water from the roof of said garage issuing from said drain pipes and spouts onto said sidewalk, and thereafter freezing and forming on same." Defendants were charged with negligence in maintaining the drain pipes and allowing the same to be maintained under the circumstances and permitting the rough and uneven ridges of ice to form and to remain when defendants could, by the exercise of ordinary care, have known of the condition in time to have abated the same before the injury. The case was dismissed as to defendant, Belle Garman.
There was evidence tending to sustain the allegations of the petition and showing negligence on the part of both defendants. At the end of all the evidence the court marked "given" the following instruction: "Under the pleadings and the evidence your verdict in this case must be for the defendant Charles W. Garman." When the court marked said instruction "given" defendant, Kansas City, moved the court to dismiss the case as to it, which motion was overruled. An instruction in the nature of a demurrer to the evidence was likewise requested by the defendant Kansas City, but the same was refused. Thereupon the court stated:
"Let your record show that at the close of all the evidence the defendant Garman offers a demurrer which is by the court sustained and to which ruling and action of the court the defendant Kansas City at the time duly excepted and still excepts; also to which action and ruling of the court the plaintiff at the time duly excepted and still excepts; and that upon the court sustaining the demurrer of the defendant Garman, the City moves that the case against the City be dismissed, which motion is by the court denied; to which ruling and action of the court the defendant Kansas City at the time duly excepted and still excepts."
The court thereupon instructed the jury "that this case is submitted to you only as against defendant Kansas City." The peremptory instruction marked "given" for defendant Garman was not read to the jury. Why it was not submitted to the jury is not explained. Such failure could not have been an oversight for the reason that the court instructed the jury that the case was submitted to them only as to defendant Kansas City. The jury returned a verdict against the city but, of course, made no finding as to defendant Garman. The court recited in its judgment the dismissal of the case as to the defendant, Belle Garman, the marking of "given" on the instruction offered by the defendant, Charles Garman, and the verdict of the jury against the city. The judgment was in favor of plaintiff and against the city in accordance with the verdict but in addition judgment was rendered in favor of defendants, Belle Garman and Charles Garman. Defendant city appealed.
The city in its motion for new trial and in arrest of judgment called the attention of the court to the fact that the verdict of the jury was not responsive to the issues and it now urges that point in this court. We think the point is well taken, in that the jury found the...
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