Rose v. Kansas City

• Decision Date: 06 May 1907
• Citation: 102 S.W. 578,125 Mo.App. 231
• Parties: EMMA N. ROSE, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

102 S.W. 578

125 Mo.App. 231

EMMA N. ROSE, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

May 6, 1907

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

REVERSED AND REMANDED.

Edwin C. Meservey, City Counselor, and Francis M. Hayward Associate City Counselor, for appellant.

(1) The verdict was so excessive as to show passion and prejudice on the part of the jury. Nicholds v. Glass Co., 126 Mo 55; Johnson v. Railroad, 67 Minn. 260; Collins v. Janesville, 111 Wis. 348; Bennett v. Backus L Co., 77 Minn. 99; Corcoran v. Western D. R Co., 40 N.Y.S. 1117. (2) The court erred in not granting a new trial on the ground of newly-discovered evidence. Folding Bed Co. v. Railroad, 148 Mo. 478; Howland v. Reeves, 25 Mo.App. 458. (3) The court erred in this because the court refused to permit defendant's counsel to state the evidence to the jury and in the presence of the jury commented on and misstated the evidence of Dr. Wilson in regard to respondent's injuries. State ex rel. v. Mfg. Co., 149 Mo. 181; Schmidt v. Railroad, 149 Mo. 269; Wright v. Richmond, 21 Mo.App. 81; Cronkhite v. Dickerson, 51 Mich. 177; Wheeler v. Wallace, 53 Mich. 355; Andreas v. Ketcham, 77 Ill. 377; Perkins v. Kinsely, 204 Ill. 275; Padgitt v. Moll, 159 Mo. 157; Neil v. Abel, 24 Wend. 185; Mitchell v. Carter, 14 Hun 448; Stroker v. St. Joseph, 117 Mo.App. 350. (4) The court erred in refusing defendant's instruction numbered 5 and giving it as modified. Jackson v. Kansas City, 106 Mo.App. 52; Wheat v. St. Louis, 179 Mo. 572.

Laughlin & Kenworthy and Walsh & Morrison, for respondent, filed argument.

OPINION

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 twenty-two years of age and weighing about one hundred and forty pounds, was injured at the southwest corner of Sixteenth and Wyoming streets in Kansas City, Missouri, 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 nearby, 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 employee in a cigar store. 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 Co. 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 seven thousand five hundred dollars. The plaintiff voluntarily remitted three thousand dollars of the verdict, whereupon the court entered up a judgment for four thousand five hundred dollars, from which defendant appealed.

Defendant complains of the action of the court in refusing to give its instruction numbered five as requested and modifying it. The instruction as asked reads as follows: "The jury are instructed that, while it was the duty of defendant to keep its streets in a reasonably safe condition for persons traveling thereon, in the exercise of ordinary care; it was also the duty of plaintiff to use her eyes and senses to discover any defects in the street, that might have been apparent, and to use ordinary care to avoid the same; and if they believe from the evidence that plaintiff failed to use her eyes and senses to discover any defect; and believe the defect was apparent and she failed to use ordinary care and that by the exercise of ordinary care she might have avoided the same, they will find for the defendant." As modified, it reads as follows. "The jury are instructed that, while it was the duty of defendant to keep its streets in a reasonably safe condition for persons traveling thereon, in the exercise of ordinary care; it was also the duty of plaintiff to exercise ordinary care in the use of her eyes and senses to discover any defects in the street, that might have been apparent, and to use ordinary care to avoid injury; and if they believe from the evidence that plaintiff failed to use such care to discover any defect, and if they further believe that the defect, if any, was apparent, and that plaintiff failed to use ordinary care, and that by the exercise of ordinary care she ought to have avoided her injury, if any, your verdict will be for defendant." The modification complained of changes the phraseology of the language in the instruction, to-wit; "And if they believe from the evidence that plaintiff failed to use her eyes and senses to discover any defect," and substitutes the words; "And if they believe from the evidence that plaintiff failed to use such care to discover any defect." In Jackson v. Kansas City, 106 Mo.App. 52, 79 S.W. 1174, we held that the modification of the defendant's instruction by striking out the words, "to use their eyes and other senses," was error as it tended to weaken the force of the instruction which embodied good law as asked. But the case at bar is somewhat different as the jury was told in the former part of the instruction that it was the duty of plaintiff to exercise ordinary care in the use of her senses to discover any defect in the street, and the modification, that if plaintiff failed to use such care to discover any defect, had direct reference to her duty to use her eyes and senses. The modification did not change materially the sense and strength of the instruction.

While Mr. Hayward, counsel for defendant, was addressing the jury he said: "Gentlemen of the jury, this is nothing but a sprained ankle; when you have a...