Sanders v. Kansas City, Missouri
Decision Date | 11 October 1937 |
Docket Number | No. 18744.,18744. |
Parties | VERRAH SANDERS, DEFENDANT IN ERROR, v. KANSAS CITY, MISSOURI, PLAINTIFF IN ERROR. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.
AFFIRMED.
J. Victor Schultz for defendant in error.
George Kingsley, City Counselor, Francis L. Roach, and Marcy K. Brown, Jr., Assistant City Counselors for plaintiff in error.
The defendant in error, hereinafter called plaintiff, while walking east upon a public sidewalk on the south side of Fourteenth Street in Kansas City, Missouri, stepped into a hole, fell, and was injured. She brought this suit to recover for her injuries, obtained a verdict and judgment in the sum of $2,000. The plaintiff in error, hereinafter called defendant, brought the case here on writ of error.
The plaintiff testified that on the forenoon of February 1, 1933, while she was walking upon a concrete sidewalk four feet wide on the south side of Fourteenth Street in the defendant city, she stepped into a hole, in consequence of which she was severely injured; that prior to the day of injury she had not traveled on said sidewalk nor did she have knowledge of any defect in the walk.
Plaintiff in describing her action, immediately before and at the time of the accident, testified as follows:
The evidence shows that the hole in the sidewalk was 3 feet long, 18 inches wide and 18 inches deep and that it existed for about one year prior to February 1, 1933.
The defendant contends the court erred in refusing its instruction in the nature of a demurrer to the evidence for the reason that plaintiff was guilty of contributory negligence as a matter of law, and that plaintiff did not give notice of accident as required by Section 7493, Revised Statutes 1929.
The defendant argues that the defect was plainly obvious and, hence, plaintiff was bound to see it. This insistence overlooks the evidence to the effect that the hole was covered with paper, which concealed the dangerous condition. The defendant, however, says that the evidence of plaintiff to the effect that the hole was covered with paper "is so outside all common knowledge and so far away from all physical possibilities of the occasion, that the testimony is absolutely worthless and should be totally disregarded by this court."
This court cannot weigh the evidence. If it were true that the hole was covered with papers, then we cannot say that plaintiff was guilty of negligence as a matter of law. The truth of plaintiff's testimony was for the consideration of the jury. The jury saw plaintiff, heard her testify and believed her story. The trial judge also saw the plaintiff, heard her testify, and approved the verdict. In such circumstances this court, in the absence of power to value the evidence, cannot interfere.
Concerning the notices of injury, the first notice served March 10, 1933, correctly stated the location of the hole and stated that the accident occurred on February 10. The correct date of accident was February 1. The second notice, served on April 28, 1933, said the accident occurred on February 1, and misdescribed the place of accident. It affirmatively appears that photographs of the hole into which plaintiff fell were "invoiced" to the defendant on April 11, 1933. There is nothing in the record indicating that the mistakes in the notices misled or prejudiced defendant. It may be, the facts in the case considered, the notices were sufficient. [Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001: Costellow v. Kansas City, 219 S.W. 386; Canter v. City of St. Joseph, 105 S.W. 1.] However, the sufficiency of the notices need not be determined for the reason that the question of notice or no notice was not an issue in the case. The defense of failure to give notice is an affirmative one.
The answer was a general denial and a plea of contributory negligence; hence, the question of notice was not an issue in the case. [Koontz v. City of St. Louis, 89 S.W. (2d) 586; David v. City of St. Louis, 96 S.W. (2d) 353.] It was proper for the court to submit the case to the jury.
Lee Smith, plaintiff's witness, testified the "hole was there on February 1, 1933... . and it was there the whole year of 1932 and at least a year back of February 1st." On cross-examination the witness testified that he worked for the Kansas City Stock Yards Company; that he "worked for the CWA a while, and any other work" he could get; that his foreman in the stock yards was John Mankin.
The defendant's witness Dore, timekeeper of the Kansas City Stock Yards Company, over the objections of plaintiff, testified that he had examined the record of the stock yards company and that Lee Smith's name was not on the payroll; that John Mankin was not a foreman in the stock yards company.
The defendant's witness, Dougherty, over the objections of plaintiff, testified that the witness, ...
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