Strother v. Sieben

• Decision Date: 11 January 1926
• Docket Number: No. 15064.,15064.
• Citation: 282 S.W. 502
• Parties: STROTHER, Public Administrator, v. SIEBEN et al.
• Court: Missouri Court of Appeals

282 S.W. 502

STROTHER, Public Administrator, v. SIEBEN et al.

No. 15064.

Kansas City Court of Appeals. Missouri.

January 11, 1926.

Certiorari Denied April 9, 1926.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Suit by Sam B. Strother, Public Administrator, as administrator of the estate of Dave Daneschocky, deceased, against Henry Sieben, Kansas City, and others. Judgment for defendants, and from an order granting new trial, defendant last named appeals. Affirmed.

John B. Pew and John D. Wendorff, both of Kansas City, for appellant.

Phineas Rosenberg, Darius A. Brown, and John G. Park, all of Kansas City, for respondent.

BLAND, J.

This is a suit for the wrongful death of Dave Daneschocky. There was a verdict and judgment in favor of defendants. The court granted plaintiff a new trial as against all of the defendants, but defendant Kansas City alone has appealed.

Deceased died as the result of being struck by an automobile on January 9, 1916, at Fifteenth street and Troost avenue, in Kansas City, Mo. He was walking on Fifteenth street with a number of other young persons who were returning home from a social gathering, when a number of theta were injured and others killed. The facts concerning this tragedy have been so often described in detail by the appellate courts of this state that it is unnecessary to further burden the reports with a restatement of them. See Adelman v. Altman, 240 S. W. 272, 209 Mo. App. 583; Lindman v. Altman (Mo. Sup.) 271 S. W. 512; Landman v. Kansas City (Mo. Sup.) 271 S. W. 516; Shaft v. Carroll, first and second cases (Mo. Sup.) 274 S. W. 755.

The suit in the case at bar was brought against Sieben, owner of the automobile, Smiley, its driver, Carroll, the contractor, Altman, the property owner, and Kansas City. The verdict was in favor of all defendants. The court granted a new trial as against Kansas City for error in giving the following instructions:

"XV A. The court instructs the jury that before plaintiff can recover in this case against the defendant Kansas City, it must appear that some negligent act of Kansas City, either alone or in conjunction with the negligent act or acts of some of the other defendants herein, occasioned the injury to deceased. It is not enough that the city may have permitted a condition to exist if it did so exist without which deceased or persons using said street under the same or similar circumstances would not have been injured while using said street under the same or similar circumstances which deceased was using it at the time and place of his said injuries, unless such injury could have been reasonably anticipated by a reasonably prudent person as the natural and probable result of such condition. If, therefore, in this case you find that deceased would not have walked into the street where it is alleged he was injured but for the building material put there by defendant Carroll, plaintiff cannot recover against the city, unless you find a reasonably prudent person under the same or similar circumstances would have anticipated that persons using said street under the same or similar circumstances shown in evidence would have been injured as the natural and probable result of permitting said building material to remain in said street, and your verdict will be for defendant Kansas City." (Italics ours.)

"XVII. The court instructs the jury that the city had a right to permit a property owner to use a reasonable portion of the street for the construction of a building, provided a sufficient portion of the street is left open and reasonably safe provisions made for persons to travel and to pass over in safety."

"If, therefore, you find from the evidence that, notwithstanding the excavation of the sidewalk space at the southeast corner of Fifteenth street and Troost avenue, and the piling of building material in the street, there was not an excessive amount of building material in the street sufficient to make the street unsafe for foot travelers at the time of plaintiff's alleged injury, then Kansas City was not negligent, and your verdict will be for Kansas City."

"XXI. The court instructs the jury that the city may temporarily withdraw a part of a public street from travel, and it may permit a property owner in the construction of a building on his property to make a reasonable use of a part of the street in front of his property for the storage of building material, while the work goes on and, if reasonable notice is given of such withdrawal from travel of such part of such street, either by barricades or lights or the material itself, then invitation to use such part of the street is withdrawn, and persons desiring to travel such street may use only that part of the street not withdrawn from travel, and, while using such part still left open for travel they are required by law to use reasonable care to protect themselves from injury, and, if the lack of such care on the part of one of such travelers causes them to be injured, the city is not responsible for such injury. If, therefore, you find from the evidence that no more than a reasonable amount of the street, such as was needed by the nature of the structure in process of erection, was withdrawn from travel, and that reasonable notice of such withdrawal was given to the public, before the injury to the plaintiff, by lights and barricades or the material itself in that portion of the street so withdrawn at the time of the injury to deceased, and deceased was injured by his own negligence, if so, you are further instructed that there can be no recovery in this case as to the city, and your verdict will be for the defendant Kansas City."

Defendant Kansas City insists that there was no error in the giving of the instructions mentioned. Plaintiff insists that there was error, and assigns as against instructions Nos. XVII and XXI that they are erroneous, because, among other things, they ignore and attempt to nullify the duty of the city to maintain the division of traffic between pedestrians and vehicles. There is no doubt but that they ignore such division of traffic, and the only question is whether they are erroneous in this respect. A determination of this point depends upon the construction of the decisions of the Supreme Court in Shafir v. Sieben, 233 S. W. 419, 17 A. L. R. 637; Lindman v. Kansas City, supra; Adelman v. Altman, supra; Lindman v. Altman, supra; and Shafir v. Carroll, supra. There are only two of these cases, to wit, Shafir v. Sieben and Lindman v. Altman, in which the opinions were concurred in by the majority of the court, but we do not think that we are confined in our effort to find out the latest ruling of the Supreme Court to those two cases, for the reason that the decisions in the other cases dispose of the appeals in those cases, and, while the opinions in them are not the opinions of the court, we think that they should be held to decide at least such matters that were necessary to be decided in order for the court to arrive at the conclusions reached by it.

It is difficult to construe together these five opinions of the Supreme Court. Counsel on both sides in oral argument stated that it was impossible to harmonize them, and upon examination of them we have arrived at the same conclusion. Two of these opinions were handed down March 12, 1925, and two others on May 23, 1925, and, as we shall hereinafter show, the decisions in at least two of these cannot possibly be harmonized. This condition is brought about by the failure of the majority of the court to write an opinion in three of the last-mentioned four cases. If the spirit of the Constitution, providing that opinions of appellate courts of this state shall be in writing had been followed, this difficulty would not be present, as we, at least, would have had the last opinion of the court to follow. Under the circumstances whatever result we reach will unquestionably be unsatisfactory to the losing party, and undoubtedly a writ of certiorari will be applied for, thus affording the Supreme Court, upon whom, under the circumstances, the primary duty ought to fall, an opportunity to harmonize, if possible, these opinions, if it disagrees with us in our construction of them.

The appeal in the case of Lindman v. Altman, supra, was that of plaintiff from a verdict in favor of Carroll, the contractor. In that case the court held that the contractor could not be held for the obstruction of the sidewalk space, but, if at all, only for the placing of building material in the street and taking up slightly more than one-third of the roadway. The court considered ordinance No. 38919 concerning the taking out of a permit and providing for the erection and maintenance of a way for foot travelers where a public street is occupied by building materials. It was held that the way was not required until the superintendent of buildings determined when, and the manner in which, it...