Smart v. Kansas City

Citation105 S.W. 709,208 Mo. 162
Decision Date06 November 1907
CourtMissouri Supreme Court

Lamm and Graves, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Stella Smart against Kansas City for personal injuries. From an order granting a new trial on a verdict for plaintiff, plaintiff appeals. Affirmed.

Henry J. Latshaw, for appellant. Edwin C. Meservey and Wm. A. Knotts, for respondent.


The subjoined opinion written by WOODSON, J., in Division No. 1, is adopted as the opinion of the court in banc. All concur, except GRAVES, J., who concurs in result, but dissents as to paragraphs 2 and 3; and LAMM, J., who concurs in result in separate opinion in which GRAVES, J., concurs.


This is a suit which was instituted by the plaintiff against defendant, in the circuit court of Jackson county, asking damages in the sum of $25,000 for personal injuries sustained by her through the alleged negligence of defendant in permitting a coal hole in one of its streets to become out of repair, and remain in a dangerous condition for pedestrians to pass over, and that while passing over it she stumbled and fell upon her knee and side, and, as a result, received an injury to her right knee, which resulted in the amputation of her right leg above the knee. As there are no complaints lodged against the pleadings, it will serve no good purpose in setting them out in this opinion.

The evidence tended to establish the following facts: On February 26, 1898, plaintiff was walking south on the west side of Wyandotte street in defendant city, with a bundle of clothing she had made, and was carrying them to the owner. In front of No. 1012 Wyandotte street there was a coal hole in the sidewalk, constructed of a metallic cylinder and a round lid. The evidence for plaintiff tended to show the cylinder extended from two to four inches above the stone sidewalk, while that of the defendant tended to show it extended above the surface of the walk not to exceed one-half to three-quarters of an inch; and all the evidence tended to show that it had been in the same condition for years that it was in on the day of the injury; that when she reached said coal hole she struck her right foot against it, which caused her to trip and fall, and thereby caused her knee to strike the metal cover, and greatly bruise and injure it, and pushed the kneecap to one side—toward the inner side of her limb; that bystanders assisted her to a passing buggy, and she was driven to her home, where she remained a few days, where the limb was examined by a massagist, who was not admitted to practice, and her knee was found to be bruised and very much swollen, and the kneecap dislocated, as before stated, all of which caused her to suffer much pain; that within a few days she was taken to the city hospital, which we gather from the record belonged to the city, though there is no positive evidence of that fact in this record; there she received proper care and medical treatment, but continued to grow worse for two months, when it became necessary, in order to save her life, to amputate her right...

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  • Cochran v. Gritman
    • United States
    • United States State Supreme Court of Idaho
    • December 23, 1921
    ...... methods. ( Flood v. McClure, 3 Idaho 587, 32 P. 254;. Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545;. Wright v. Union Pacific Ry. Co., 22 Utah 338, 62 P. ...App. 347, 51 P. 808;. United Rys. & Electric Co. v. Corbin, 109 Md. 442,. 72 A. 606; Smart v. Kansas City, 208 Mo. 162, 123. Am. St. 415, 13 Ann. Cas. 932, 105 S.W. 709, 14 L. R. A., N. ......
  • Cardinale v. Kemp
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1925
    ...Portland (Mo. App.) 249 S. W. 730; McAuliffey v. U. Ry. Co. (Mo. App.) 237 S. W. 129; Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709, 14 L. R. A. (N. S.) 565, 123 Am. St. Rep. 415, 13 Ann. Cas. 932; Willis v. Kansas City (Mo. App.) 199 S. W. 736; Ruch v. Pryor (Mo. App.) 190 S. W. 1037; J......
  • State v. Sapp, 40261.
    • United States
    • United States State Supreme Court of Missouri
    • June 9, 1947
    ...and was violative of and prohibited by Sec. 1895, R.S. 1939. Sec. 1895, R.S. 1939; Sec. 23, Art. II, Mo. Constitution; Smart v. Kansas City, 105 S.W. 709, 208 Mo. 162. (3) The court erred in giving Instruction S-3 on the part of the state because said instruction placed upon the defendant a......
  • Cardinale v. Kemp
    • United States
    • United States State Supreme Court of Missouri
    • July 1, 1925
    ...Mo. 443; Taylor v. Metropolitan, 256 Mo. 191; McNulty v. Atlas Cement Co., 249 S.W. 730; McAuliff v. U. Rys. Co., 237 S.W. 129; Smart v. Kansas City, 208 Mo. 162; Willis v. Kansas City, 199 S.W. 736; Ruch Prior, 190 S.W. 1037; Jackmann v. St. Louis, 187 S.W. 786; Mahoney v. K. C. Ry., 286 M......
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