Sindlinger v. The City of Kansas

• Decision Date: 09 January 1895
• Parties: Sindlinger v. The City of Kansas, Appellant
• Court: Missouri Supreme Court

28 S.W. 857

126 Mo. 315

Sindlinger v. The City of Kansas, Appellant

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.

Reversed.

""John S. Blackwell and ""F. P. Walsh with ""F. F. Rozzelle for appellant.

(1) It was error to admit evidence of plaintiff's general conduct and habits as to sobriety. ""Collins v Glass, 46 Mo.App. 297; ""Suttie v. Aloe, 39 Mo.App 38. And the admission of such evidence constituted reversible error. ""Suttie v. Aloe, 39 Mo.App. 38; ""Clark v. Fairley, 30 Mo.App. 340; ""Deery v. Cray, 5 Wall. 807; ""Smith v Shoemaker, 17 Wall. 630; ""Railroad v. O'Brien, 119 U.S. 99; ""Gilmer v. Higley, 110 U.S. 47; Thompson on Charging Jury, sec. 130. (2) The court erred in permitting witnesses to give their opinions as to the safety of the railing. It was for the jury to determine, from the facts proven, whether it was or not in such condition. ""Koons v. Railroad, 65 Mo. 592; ""Brown v. Road Co., 89 Mo. 152; ""Eubank v. City of Edina, 88 Mo. 650; ""Garish v. Railroad, 49 Mo. 274; ""Wetherell v. Patterson, 31 Mo. 458. (3) The court erred in allowing improper evidence as to the permanency of plaintiff's injuries. ""Bailey v. Westcott, 14 Daily, 506; ""Atkins v. Railroad, 64 S.Ct. N. Y. 102; ""Curtis v. Company, 18 N.Y. 542; ""Lincoln v. Railroad, 23 Wendell, 425; ""Lozer v. Railroad, 38 Hun, 100; ""Dawson v. Troy, 48 Hun, 322. (4) The court erred in permitting plaintiff's counsel to read to the jury the defendant's city charter, a public act. ""Bowie v. Kansas City, 51 Mo. 445; ""Inhabitants v. Robinson, 75 Mo. 192; 1 Thompson on Trials, secs. 1050, 1055, 1056. It is error to permit statutes to be read to the jury, leaving each juryman to place his own interpretation upon the law and its requirements. (5) The court erred in overruling defendant's motion to strike out and allowing evidence of the alleged negligence that defendant failed to maintain lamp lights on the night of the accident. The law does not impose the duty upon a municipal corporation to light its streets. ""Freeport v. Isbell, 83 Ill. 440; Jones on Neg. Mun. Corp., p. 165, sec. 85. (6) The court erred in giving plaintiff's instruction numbered 1. The instruction is erroneous because: ""First. It refers the jury to the pleadings. ""McGinnis v. Railroad, 21 Mo.App. 399; ""Grant v. Railroad, 25 Mo.App. 227. ""Second. It is predicated on negligence not alleged in the petition and is broader than the allegations of the petition. ""Jordan v. Hannibal, 87 Mo. 674; ""Gourley v. Railroad, 93 Mo. 445. (7) Plaintiff's instructions numbered 1, 3 and 5 are erroneous because they are broader than the allegations of the petition. "Instructions in an action for negligence should confine the jury to the negligence alleged in the petition." ""Dahlstrom v. Railroad, 96 Mo. 99; ""George v. Railroad, 40 Mo.App. 433; ""Ravenscroft v. Railroad, 27 Mo.App. 617; ""Gourley v. Railroad, 93 Mo. 445. "When a petition alleges a specific act of negligence as the ground of plaintiff's action, there can be no recovery for any other act." ""Price v. Railroad, 72 Mo. 414. (8) The court erred in giving plaintiff's instruction numbered 6. This instruction was erroneous because: ""First. It does not properly declare the law. ""O'Donnel v. Patton, 117 Mo. 14. ""Second. It does not define or explain to the jury the meaning of "extraordinary care or caution." ""Wiser v. Chesley, 53 Mo. 547. "Instructions must be considered with reference to the possibilities of their interpretation." ""State to use v. Bank, 10 Mo.App. 482. (9) The court erred in giving plaintiff's instruction numbered 9. It is erroneous because: ""First It is an abstract proposition calculated to mislead the jury. ""Gourley v. Railroad, 93 Mo. 445; ""Ravenscroft v. Railroad, 27 Mo.App. 617. ""Second. It announces a rule that can have no application to a case like this. The question of remote negligence was not in this case. ""Matthews v. Co., 59 Mo. 474; ""Bonine v. Richmond, 75 Mo. 437; ""Kuhlman v. Meier, 7 Mo.App. 261; ""Hoffman v. Ackley, 34 Mo. 277; ""State ex rel. v. Emerson, 74 Mo. 607. ""Third. The instruction does not correctly state the law of contributory negligence. "The question to be determined in every case is not whether the plaintiff's negligence caused, but whether it contributed to, the injury of which he complained." Shearman & Redfield on Neg., sec. 96, p. 152, and cases there cited. ""Ashbrook v. Railroad, 18 Mo.App. 290. (10) Plaintiff's instruction numbered 7 should not have been given. It is based solely upon the question of negligent construction, of which there was no evidence. It is error to give instructions upon a theory of negligence which has no evidence to support it. ""Chrisley v. Hughes, 24 Mo.App. 275; ""Sweeney v. Railroad, 38 Mo.App. 154; ""Bowen v. Railroad, 75 Mo. 426; ""Bergman v. Railroad, 104 Mo. 90; ""Norton v. Railroad, 40 Mo.App. 447; ""Gerren v. Railroad, 60 Mo. 410; ""Evans v. Railroad, 106 Mo. 594; Thompson on Charging Jury, p. 175; ""Dowling v. Allen, 88 Mo. 293; ""Edwards v. Myers, 22 Mo. 481. (11) The plaintiff was not entitled to recover under any view of the evidence. The demurrer to the evidence should have been sustained. The evidence of plaintiff's own witnesses, as well as the undisputed testimony of defendant's witnesses, shows that plaintiff was guilty of such contributory negligence as ought to bar a recovery by him in this case. ""Ashbrook v. Railroad, 18 Mo.App. 290; ""Moxey v. Railroad, 113 Mo. 1; ""Lynch v. Railroad, 112 Mo. 420.

""E. C. Mapledoram, W. M. Payne and ""William Aull for respondent.

(1) There was no error in the admission of evidence of witness Neff. ""Corrister v. Railroad, 25 Mo.App. 627; ""Brennan v. St. Louis, 92 Mo. 488; ""Margrave v. Ausmus, 51 Mo. 567; ""Railroad v. Moore, 37 Mo. 388; ""Bank v. Armstrong, 62 Mo. 59; ""Clark v. Conway, 23 Mo. 438; ""Woodburn v. Cogdal, 39 Mo. 222; ""Schools v. Risley, 40 Mo. 357; ""Buckley v. Knapp, 48 Mo. 152; ""Loewer v. Sedalia, 77 Mo. 437; ""Strauss v. Railroad, 86 Mo. 433; R. S. Mo. 1889, sec. 2303. (2) There was no error in the giving of opinions by the witness Whit worth, and in fact no opinion given. If it were error it was not such as materially affected the merits of the action and was both invited and insisted upon by appellants over respondent's objections. ""Loewer v. Sedalia, 77 Mo. 446; ""Strauss v. Railroad, 86 Mo. 433; ""Stevens v. Crane, 116 Mo. 408; ""Thorpe v. Railroad, 89 Mo. 650; ""Holmes v. Braidwood, 82 Mo. 610; ""Davis v. Brown, 67 Mo. 313; ""McGonigle v. Daugherty, 71 Mo. 259. (3) There was no error in the admission of testimony of physicians as to the permanence of injuries. ""Filer v. Railroad, 49 N.Y. 45; ""Griswold v. Railroad, 115 N.Y. 61; ""Turner v. Newburgh, 109 N.Y. 309; ""Squires v. Chillicothe, 89 Mo. 231. (4) There was no error in permitting parts of defendant's city charter to be read in evidence. ""Bowie v. Kansas City, 51 Mo. 456; ""Inhabitants v. Robinson, 75 Mo. 192. (5) There was no error in overruling defendant's motion to strike out parts of petition, and in allowing evidence that there were no lights in defendant's lamps on the viaduct on the night of the accident. ""Loewer v. Sedalia, 77 Mo. 432; ""Hyatt v. Rondont, 44 Barb. 386; ""Com. v. Bridge Co., 12 Cush. 242; ""Miller v. St. Paul, 38 Minn. 134; 20 Am. and Eng. Corporation Cases, 349; ""Walker v. Kansas City, 99 Mo. 651; Buswell on Personal Injuries, p. 282, sec. 179; ""Jefferson v. Chapman, 127 Ill. 438; ""Indianapolis v. Scott, 72 Ind. 196; ""Smith v. St. Joe, 45 Mo. 450; ""Joliet v. Verly, 35 Ill. 60; ""City v. Powers, 42 Ill. 169; ""Seward v. Milford, 21 Wis. 491; ""Daniels v. Lebanon 58 N.H. 284; ""Sleeper v. Sandown, 52 N.H. 244. (6) There was no error in instruction number 1 given for plaintiff. ""Corrister v. Railroad, 25 Mo.App. 619; ""Edelman v. Trans. Co., 3 Mo.App. 506; ""State v. Scott, 109 Mo. 231; ""Porter v. Knight, 63 Iowa 365; ""Bryan v. Railroad, 63 Iowa 454; ""Ins. Co. v. Rothchild, 82 Ill. 168; ""Railroad v. Porter, 92 Ill. 437; ""Railroad v. Gaftka, 27 Ill.App. 524; ""Ladd v. Piggott, 114 Ill. 654; ""Railroad v. Hastings, 136 Ill. 255; ""Railroad v. Voelke, 31 Ill.App. 319; ""Hotel Ass'n v. Walters, 23 Neb. 280; ""Burdoin v. Trenton, 116 Mo. 371. (7) Plaintiff's instructions 1, 3 and 5 were not erroneous. Especially not so when compared with other instructions given. ""Karle v. Railroad, 55 Mo. 476; ""Whalen v. Railroad, 60 Mo. 323; see, also, authorities cited under point 6, ""supra; Jefferson v. Chapman, 127 Ill. 438; ""Springfield v. LeClaire, 49 Ill. 476; ""Chicago v. Johnson, 53 Ill. 91; ""Chicago v. Brophy, 79 Ill. 277. (8) There was no error in instruction number 6 given for plaintiff. ""Edelman v. Trans. Co., 3 Mo.App. 503; ""Loewer v. Sedalia, 77 Mo. 438; ""Johnson v. Railroad, 96 Mo. 349; ""Neuehlhausen v. Railroad, 91 Mo. 332; ""Demetz v. Benton, 35 Mo.App. 559; ""Otco v. Railroad, 12 Mo.App. 168. (9) There was no error in giving instruction number 9 for plaintiff. ""McGrew v. Railroad, 109 Mo. 582; Thompson on Trials, sec. 2321; ""Swigart v. Hawley, 140 Ill. 192; ""Meyer v. Railroad, 19 Mo. 223; ""Parham v. Railroad, 56 Mo. 338. Especially so when read in connection with the other instructions, and especially instructions for defendant. (10) There was no error in giving instruction 7 for plaintiff. There was abundant evidence of negligent construction. The simple description given by the witness of the manner of construction stamps upon defendant the grossest and most reckless negligence imaginable.

OPINION

Gantt, P. J.

This is an action for damages for personal injuries occasioned by a fall from the end of the Wyoming street viaduct in Kansas City. Plaintiff sued the city and...