State v. Ellison

• Decision Date: 19 December 1918
• Docket Number: No. 20947.,20947.
• Citation: 208 S.W. 443
• Parties: STATE ex rel. METROPOLITAN ST. RY. CO. v. ELLISON et al.
• Court: Missouri Supreme Court

208 S.W. 443

STATE ex rel. METROPOLITAN ST. RY. CO. v. ELLISON et al.

No. 20947.

Supreme Court of Missouri, in Banc.

December 19, 1918.

Rehearing Denied Jan. 25, 1919.

Certiorari by the State, on the relation of the Metropolitan Street Railway Company, against James Ellison and others, Judges of the Kansas City Court of Appeals, and another, to quash a judgment. Writ quashed.

Clyde Taylor and Warner, Dean, McLeod Langworthy, all of Kansas City, for relator. E. A. Scholer and T. Madden, both of Kansas City, for respondents.

BOND, C. J.

I. Charles Sutter brought an action against the Metropolitan Street Railway Company and Kansas City for loss of the society and services of his wife, caused by her being tripped or thrown upon a pile of brick negligently placed or allowed to remain upon one of the streets of Kansas City, with no lights placed on said brick to warn the public, laying his damages at $10,000. Upon an appeal from an order of the circuit court granting a new trial of a judgment in favor of the defendants, this court affirmed the order granting the new trial and remanded the case. Sutter v. Met. St. Ry. Co. et al., 188 S. W. 65. After a full statement of the facts and discussion of the applicatory law, this court held (Graves, J.) that a case was made for the jury upon the evidence showing that no rod lights as danger signals were placed "at this long ridge or pile of bricks," and "that Mrs. Sutter, in the nighttime and in the dark, stumbled upon a brick upon the sidewalk and was thrown upon the irregular pile of bricks and was injured, the reasoning being thus stated:

"Whilst it is true that the defendant is not responsible for the acts of the children in removing bricks to the sidewalk, yet it had knowledge of that fact, and failed to put up any warnings of a dangerous place. The bricks were not placed on the sidewalk by defendant, but they were placed so close thereto as to be a continuing menace to the sidewalk. The danger of the place was partly made by defendant. It had the right for a reasonable time, to use this parking, or even the sidewalk itself, in the construction of its improvement; but with that right ran the duty to warn the public of the dangerous places. Warning signals in the street were not sufficient." (Italics ours.)

Upon the remand of the case as directed in that opinion, the cause was tried again, and resulted in a verdict in favor of the plaintiff against the defendants for $4,500, from which defendants duly appealed to the Kansas City Court of Appeals, 208 S. W. 851, where the same was affirmed. Thereupon the defendants sued out a writ of certiorari to quash said judgment for the alleged reason that the Kansas City Court of Appeals conflicted certain decisions of this court in construing an instruction given for plaintiff in the trial court.

In support of that contention relator directs our attention to the following portions of the opinion of the Kansas City Court of Appeals:

"Defendant Street Railway Company attacks plaintiff's instruction No. 1 on various grounds. That instruction provides as follows:

"`The court instructs the jury that, if you believe and find from the evidence that defendant Metropolitan Street Railway Company threw or piled bricks near or upon the sidewalk at the place where plaintiff's wife fell (if you find she fell), and that said brick were upon or so close to the walk used in public travel as to constitute a menace to those using it, then it was the duty of defendant Metropolitan Street Railway Company to light said pile of brick so as to warn the public of its presence; and it was the duty of defendant Metropolitan Street Railway Company to place a red light in such position as to shed its light upon such pile of brick and such light kept burning from sunset to sunrise.

"`If, therefore, you believe and find from the evidence that said brick were piled or thrown as aforesaid by defendant Metropolitan Street Railway Company, and permitted by it to remain in said condition for a long and unreasonable time prior to the night of August 9, 1903, and that said brick were a menace to those using said walk, and that on said night no lights were placed on said brick at the place in question so as to warn the public of the presence thereof, then defendant Metropolitan Street Railway Company was negligent; and if you further believe and find from the evidence that plaintiff's wife, while in the exercise of ordinary care for her own safety (if you so find), was tripped and thrown upon, said brick' and injured, and that as a direct result of said injury (if any), the society, assistance, and domestic services of his wife to him have been diminished,' etc., you should find for plaintiff.

"The first attack made upon this instruction by said defendant is that it claims that the instruction nowhere requires the jury to find that the alleged acts of negligence referred to therein were the proximate cause of the injury. We do not think this contention to be well taken. The instruction requires the jury to find that plaintiff's wife was in the exercise of ordinary care for her own safety. The evidence shows that the brick pile was neither lighted nor guarded, that it was piled up to and on the sidewalk, and that it was so dark that the little child who accompanied Mrs. Sutter had to feel and grope for the brick. Unless plaintiff was guilty of contributory negligence, and the jury found that she was not, the unlighted pile of brick must have been the proximate cause of the injury as well as the loose brick on the sidewalk. This instruction covered plaintiff's entire case, and for that reason should have contained every element necessary to plaintiff's recovery. While the instruction might have used language making it plainer, the jury was required by it to find that the failure to light was the proximate come of the injury. This case does not come within that class where an entire failure to contain all the elements necessary to plaintiff's recovery exists, but rather where tin; instruction is somewhat obscure in its meaning, and the obscurity is made perfectly plain by other instructions in the case. Cornovsky v. Transit Co., 207 Mo. loc. cit. 277 ; Deschner v. Railroad Co., 200 Mo. loc. cit. 332, 333 ; Tranbarger v. Railroad, 250 Mo. loc. cit. 59 . Said defendant's instruction No. 4 requires the jury to find that the failure to light was the proximate cause of the injury to plaintiff's wife. However, in connection with this point of proximate cause, it is urged by the street railway company that the failure to light the brick pile as a matter of law was not the proximate cause of the injury, because this defendant says the evidence shows that the brick pile was amply lighted by the electric lights and other lights along the...