Rose v. Kansas City

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBroaddus
Citation102 S.W. 578,125 Mo. App. 231
PartiesROSE v. KANSAS CITY.
Decision Date06 May 1907
102 S.W. 578
125 Mo. A. 231
ROSE
v.
KANSAS CITY.
Kansas City Court of Appeals. Missouri.
May 6, 1907.

1. MUNICIPAL CORPORATIONS — STREETS — DEFECTS — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

In an action for personal injuries caused by a defect in the street, a requested instruction that it was plaintiff's duty to use her eyes and senses to discover any defects in the street which were apparent or could be discovered by the use of ordinary care, and to use ordinary care to avoid the same, was properly modified by striking the words "to use her eyes and senses" where the jury had been told in the former part of the instruction that it was the duty of plaintiff to use ordinary care in the use of her senses to discover any defects in the street.

2. TRIAL — MISCONDUCT OF JUDGE.

Where, in an action for personal injuries alleged to be due to a defect in the city street, the attorney for defendant correctly stated that a certain doctor had testified that, had plaintiff been properly treated, she might recover her health, but the court sustained plaintiff's objection to the remark, on the ground that there was no evidence of the kind, and stated in the presence of the jury, "I don't think that was the testimony of the doctor," his action constituted reversible error.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Emma N. Rose against Kansas City Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Edwin C. Meservey and Francis M. Hayward, for appellant. Laughlin & Kenworthy and Walsh & Morrison, for respondent.

BROADDUS, P. J.


This is an action for damages for personal injury alleged to be the result of the negligence of the city in failing to keep its street in a reasonably safe condition. The respective parties do not differ materially in their statements of the main facts of the case. The plaintiff, a young woman 22 years of age, and weighing about 140 pounds, was injured at the southwest corner of Sixteenth and Wyoming streets, in Kansas City, Mo., by slipping on a loose brick at the edge of a hole in the street, the brick turning under her weight as she stepped upon it in alighting from the car or as she started to walk just afterwards. The defect was shown to have existed for several weeks prior. It is agreed that she sustained injuries to her ankle and one of the hips, but there is a dispute as to the extent of these injuries. After receiving treatment by a medical student at a place near by, she was sent in a carriage to her home. She was confined to her bed for ten days, and afterwards for the period of five weeks was compelled to use crutches in moving about. Plaintiff's testimony tended to show that by reason of her injuries she lost her position as employé in a cigar store.

102 S.W. 579

After she became able to go about she was employed by a telephone company for a short time, and then she worked as a telephone operator for the McPike Drug Company from November, 1904, until the next April; that she was compelled to give up both positions because wearing the headpiece required in the work gave her nervous headaches; that her ankle was severely sprained, causing a separation of the bones of the ankle joint, and that her hip joint was bruised; that ever since she received her injuries there has been constant swelling of the ankle joint, and that acute attacks of pain would suddenly occur which had the effect to cause the ankle to give way; that she had fallen many times while on the streets because of its weakened condition; that since April, 1905, up to the time of the trial, she had been unable to find employment on account of her disability; and that she was nervous and unable to sleep well. The defendant undertook to show that the plaintiff's injuries were the result of her own negligence, and that they were not serious and permanent; but, as the evidence was conflicting in those respects, it is not necessary to state it in this opinion, as the question was one solely for the jury. The jury returned a verdict for $7,500. The plaintiff voluntarily remitted $3,000 of the verdict, whereupon the court entered up a judgment for $4,500, from which defendant appealed.

Defendant complains of the action of the court in refusing to give its instruction numbered 5 as requested and modifying it. The instruction as asked reads as follows: "The jury are instructed that, while...

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19 practice notes
  • Grubbs v. Public Service Co., No. 29333.
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1931
    ...Co., 215 S.W. 762; Galewski v. Casualty Co., 205 Ill. App. 247; Richey v. Robertson, 86 Ore. 525, 169 Pac. 99; Rose v. Kansas City, 125 Mo. App. 231; 30 Cyc. 1322; Hudson v. Hudson, 90 Ga. 581. (8) The court erred in giving Instruction 1 at the request of plaintiff. Allbright v. Joplin Oil ......
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...throughout this trial failed to observe the strict neutrality demanded of him. Wright v. Richmond, 21 Mo. App. 76; Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Landers v. Railroad, 134 Mo. App. 80, 114 S.W. 543; Reeves v. Lutz, 191 Mo. App. 550, 177 S.W. 764; Jackman v. Railroad, 18......
  • White v. Teague, No. 38991.
    • United States
    • United States State Supreme Court of Missouri
    • September 5, 1944
    ...Rubber Mfg. Co., 149 Mo. 181, 50 S.W. 321; Schmidt v. St. Louis R. Co., 149 Mo. 269, 50 S.W. 921; Rose v. Kansas City, 125 Mo. App. 321, 102 S.W. 578; Webb v. Baldwin, 165 Mo. App. 240, 147 S.W. 849; State v. Potter, 102 S.W. 668, 125 Mo. App. 465; McPeak v. Mo. Pac. Ry. Co., 128 Mo. 617, 3......
  • Dorman v. East St. Louis Ry. Co., No. 31503.
    • United States
    • Missouri Supreme Court
    • October 13, 1934
    ...at bar, had nothing to do with the case at bar) constitutes a comment upon the evidence and is reversible error. Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Mahaney v. K.C., C.C. & St. J.A.T. Co., 46 S.W. (2d) 817; Clear v. Van Blarcum, 241 S.W. 81; Fantroy v. Schirmer, 296 S.W. 23......
  • Request a trial to view additional results
19 cases
  • Grubbs v. Public Service Co., No. 29333.
    • United States
    • United States State Supreme Court of Missouri
    • December 21, 1931
    ...Co., 215 S.W. 762; Galewski v. Casualty Co., 205 Ill. App. 247; Richey v. Robertson, 86 Ore. 525, 169 Pac. 99; Rose v. Kansas City, 125 Mo. App. 231; 30 Cyc. 1322; Hudson v. Hudson, 90 Ga. 581. (8) The court erred in giving Instruction 1 at the request of plaintiff. Allbright v. Joplin Oil ......
  • Mooney v. Terminal Railroad Association, No. 38122.
    • United States
    • United States State Supreme Court of Missouri
    • January 3, 1944
    ...throughout this trial failed to observe the strict neutrality demanded of him. Wright v. Richmond, 21 Mo. App. 76; Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Landers v. Railroad, 134 Mo. App. 80, 114 S.W. 543; Reeves v. Lutz, 191 Mo. App. 550, 177 S.W. 764; Jackman v. Railroad, 18......
  • White v. Teague, No. 38991.
    • United States
    • United States State Supreme Court of Missouri
    • September 5, 1944
    ...Rubber Mfg. Co., 149 Mo. 181, 50 S.W. 321; Schmidt v. St. Louis R. Co., 149 Mo. 269, 50 S.W. 921; Rose v. Kansas City, 125 Mo. App. 321, 102 S.W. 578; Webb v. Baldwin, 165 Mo. App. 240, 147 S.W. 849; State v. Potter, 102 S.W. 668, 125 Mo. App. 465; McPeak v. Mo. Pac. Ry. Co., 128 Mo. 617, 3......
  • Dorman v. East St. Louis Ry. Co., No. 31503.
    • United States
    • Missouri Supreme Court
    • October 13, 1934
    ...at bar, had nothing to do with the case at bar) constitutes a comment upon the evidence and is reversible error. Rose v. Kansas City, 125 Mo. App. 231, 102 S.W. 578; Mahaney v. K.C., C.C. & St. J.A.T. Co., 46 S.W. (2d) 817; Clear v. Van Blarcum, 241 S.W. 81; Fantroy v. Schirmer, 296 S.W. 23......
  • Request a trial to view additional results

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