Sutter v. Kansas City
| Decision Date | 31 May 1909 |
| Citation | 119 S.W. 1084,138 Mo.App. 105 |
| Parties | KATE SUTTER, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Edwin C. Meservey, City Counselor, and Chas. H. Thompson, Assistant City Counselor, for appellant.
(1) The court erred in excluding the record of the former action against the Metropolitan Street Railway Company. (a) A claimant in an action for damages for personal injuries first defeated by the party responsible over or primarily liable cannot in another action recover from the party in privity or secondarily liable. McGinnis v. Railroad Company, 200 Mo. 347; Delaplain v. Kansas City, 109 Mo.App 107; Anderson v. Fleming, 160 Ind. 597, 67 N.E. 443; Hill v. Bain, 15 R. I. 75, 23 A. 44; Featherston v. Turnpike Co., 71 Hun. 109, 24 N.Y.S. 603; Doremus v. Root, 23 Wash. 710, 54 L.R.A. 649, 63 P. 572; State v. Coste, 36 Mo. 436; Indiana v. Glass Co., 75 N.E. 649; Portland Co. v. Stratton's Independence, 158 F. 63, 16 L.R.A. (N. S.) 677; Emery v. Fowler, 39 Me. 326; Hays v. Telephone Co., 218 Ill. 414, 75 N.E. 1003; Mining Co. v Same, 7 F. 401; Railroad v. Jopes, 142 U.S. 18; Van Fleet's Former Adjudication, p. 1157. (b) Whenever a wrong doer or a party having an agreement to indemnify the city, renders a street unsafe for travel, causing injury, the relation analogous to principal and surety, master and servant, and principal and agent arises, and in case of a judgment against the city by the injured party, the city has a right to recover against the wrong doer or indemnitor. St. Joseph v. Railroad, 116 Mo. 636; Independence v. Railroad, 86 Mo.App. 588; Robbins v. Chicago, 4 Wall. 675; Strong v. Insurance Co., 62 Mo. 289; Kansas City v. Mitchener, 85 Mo.App. 36; Boston v. Worthington, 10 Gray 496, 23 Cyc. 1270. (2) The court erred in giving plaintiff's instruction No. 1. Coffey v. Carthage, 186 Mo. 573; Ely v. St. Louis, 181 Mo. 724; Ruppenthal v. St. Louis, 190 Mo. 216; Delaplain v. Kansas City, 109 Mo.App. 107. (3) The court erred in giving plaintiff's instruction No. 2, for the following reasons. Root v. Railroad, 195 Mo. 348; Beasley v. Transfer, 148 Mo. 413; Williams v. Railroad, 119 N.C. 746, 26 S.E. 32; Home Insurance Co. v. Railroad, 178 Ill. 64, 52 N.E. 862; Hesselbach v. St. Louis, 179 Mo. 505; Christian v. Meyerhoffer, 116 Mo.App. 46; Puechell v. Iron Works, 79 Mo.App. 459. (4) Defendant's instruction No. 5 in regard to notice to the city should have been given. It presented the correct rule of law applicable to the facts made by the testimony. Hesselbach v. St. Louis, 179 Mo. 505; Ball v. Independence, 41 Mo.App. 475; Parker v. Cohoes, 10 Hun. 531; Warsaw v. Dunlap, 112 Ind. 576. (5) The court erred in permitting Dr. Riegle, over the objection of defendant, to invade the province of the jury in answering a hypothetical question, which was for the jury and not for the witness to pass upon. Baehr v. Casualty Co. (Mo. App.), 113 S.W. 689; Taylor v. Railroad, 185 Mo. 239; Glasgow v. Railroad, 191 Mo. 661.
E. A. Scholer & T. J. Madden for respondent.
(1) Appellant sought to introduce in evidence the record of the judgment of the former trial because of a contract that existed between it and the street railway company. The relations of the railway company and appellant were and are foreign to this controversy. 15 Am. and Eng. E. of L. (2 Ed.), 431; Welsh v. St. Louis, 73 Mo. 734; Russell v. Columbia, 74 Mo. 480; Norton v. St. Louis, 97 Mo. 537, 23 Cyc., pp. 1206-7. The estoppel may be urged only by parties or privies; it is not available to a stranger. 2 Current Law 67. Goodnow v. Litchfield, 63 Iowa 275, 19 N.W. 229; Bridges v. McAlister, 106 Ky. 791, 51 S.W. 606; Biddle v. Burnham, 91 Me. 578, 40 A. 670; Whitcomb v. Hardy, 68 Minn. 265, 71 N.W. 264; Nowack v. Knight, 44 Minn. 241, 46 N.W. 348; Sickler v. Mannix (Neb.), 93 N.W. 1018; Densmore v. Tomer, 14 Neb. 392, 15 N.W. 734; Gwyan v. Hamilton, 29 Ala. 233; Bradley v. Johnson, 49 Ga. 412; Groshm v. Thomas, 20 Md. 234; Parker v. Moore, 59 N.H. 454; Appeal of Chandler, 100 Pa. 262; 1 Freeman on Judgments, sec. 159; Bell v. Hoagland, 15 Mo. 364; Insurance v. Cravens, 69 Mo. 77; McDonald v. Mahrey, 82 Mo. 363; Dagge v. Stumpe, 73 Mo. 513; Quigley v. Bank, 80 Mo. 296; Western & A. Railroad v. Atlanta, 74 Ga. 774; St. Joseph v. Railroad, 116 Mo. 636; Schaefer v. Fond du Lac, 99 Wis. 333; Heam v. Railroad, 67 N.H. 320, 29 A. 970; Berkson v. Railroad, 144 Mo. 217. (2) Plaintiff's instruction No. 1 was erroneous. (3) The giving of plaintiff's instruction No. 2, was error. Nephler v. Woodward, 200 Mo. 179; Allen v. Transit Co., 183 Mo. 411. (4) Defendant's instruction No. 5, in regard to notice should have been given.
This suit is to recover damages for injuries sustained by plaintiff as the alleged result of the defendant's negligence.
Prior to August 29, 1903, the Metropolitan Street Railway Co. in laying its tracks on Charlotte Street, in Kansas City took up the bricks in the pavement and piled them in the parking between the curbing and the sidewalk. Children while playing from time to time took some of these bricks from the piles and scattered them on the sidewalk. The plaintiff while passing over the sidewalk at about 8 o'clock p. m. of the said date struck her foot against some of the bricks that had been scattered on the sidewalk, fell and was injured.
The plaintiff had, prior to the institution of this suit, brought an action against the said railway company to recover for the injuries herein complained of. The allegations of the petition in that case and in this are similar. The railway company prevailed in said former suit and the defendant sets up said judgment as a bar to plaintiff's right to recover in this one.
It showed in support of this defense that the railway had by contract with the city agreed to indemnify the city and save it harmless from any damages, loss, cost or expense caused or occasioned by said street railway company in constructing, reconstructing, repairing or operating of said railways, or in paving, repaving or repairing the streets of the city.
The defendant offered in evidence the record of the former suit against the railway company which the court rejected and tried the case upon the allegation of the petition that the city had failed to exercise reasonable care to keep its street and sidewalk, including the space between the sidewalk and curb, in a reasonably safe condition for public travel by night as well as by day.
The defendant contends that the court committed error in excluding evidence of the record and judgment in the case of the plaintiff against said railway company. Its position is that a claimant in an action for damages for personal injuries, first defeated by the party responsible over or primarily liable, cannot in another action recover from the party in privity or secondarily liable. To sustain this position, defendant has called our attention to the following and other decisions: In McGinnis v. Railroad, 200 Mo. 347, it is held, where a servant is charged with a tort and he and the master are joined as defendants, and the petition imputes the negligence of the servant to the master, the master is discharged if the servant is found not guilty. In Delaplain v. Kansas City, 109 Mo.App. 107, 83 S.W. 71, is a case where the city employed its codefendant Welsh to construct a sewer; the suit was against both to recover damages sustained by the plaintiff who fell into a trench in the street, which it was alleged was left unguarded. The holding was that if the contractor was not liable the city was not liable. See also Hesselbach v. St. Louis, 179 Mo. 505, 78 S.W. 1009. We make no reference to other cases of like character as these two well illustrate the principle upon which they are based. The principle is that, where the party charged primarily with the wrong is found not to be guilty, the codefendant whose liability is dependent upon the guilt of the first party is also discharged. In reason, no other rule could obtain.
But the rule is not applicable under the facts of this case. The act of negligence charged did not in the first place rest upon the railway company. The company had the right to pile the bricks at the place designated to remain there a reasonable length of time for it to complete the work on its track and to replace them in the street. The bricks were taken from the pile, not by the connivance or consent of the company but by third parties, the children of the neighborhood. It was the duty of the railway company to prevent, as far as possible, these bricks from being scattered on the sidewalk so as not to impede travel. While this duty rested upon the company, a similar duty was imposed by law on the city to use every reasonable precaution to keep the sidewalk in a suitable condition for the use of the public. The duty of the city was not secondary, but primary and independent of that of the company. The liability of one was independent of the other and the discharge of one would not be a discharge of the other. "The question is not whether the city is responsible for the negligence of the railway company, but whether it is responsible for its own negligence in failing to discharge that duty which it owes to its citizens and to the public of maintaining its streets in a proper condition so that they may be reasonably safe for travel." [Welsh v. City of St. Louis, 73 Mo. 71; Russell v. Inhabitants of the City of Columbia, 74 Mo. 480; Norton v. City of St. Louis, 97 Mo. 537, 11 S.W. 242.]
The defendant asked the court to instruct the jury as follows "The court instructs the jury that, if you find from the evidence that the ...
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