Sutter, v. Metropolitan St. Ry. Co.

• Decision Date: 28 January 1918
• Docket Number: No. 12719.,12719.
• Citation: 208 S.W. 851
• Parties: SUTTER v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

208 S.W. 851

SUTTER v. METROPOLITAN ST. RY. CO. et al.

No. 12719.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by Charles Sutter against the Metropolitan Street Railway Company and Kansas City. Judgment for plaintiff, and defendants appeal. Affirmed. See, also, 208 S.W. 443.

Warner, Dean, McLeod & Langworthy, and Francis M. Hayward, all of Kansas City, for appellants.

T. J. Madden, of Kansas City, for respondent.

BLAND, J.

This is an appeal from a judgment for $4,500 recovered by plaintiff against defendants on account of the loss of the society and services of his wife, who, on August 9, 1903, was injured by falling over a pile of bricks piled along the sidewalk on Charlotte street between Eighteenth and Nineteenth streets, in Kansas City, Mo. This is the second appeal in the case. The first appeal went to the Supreme Court. Sutter v. Metropolitan Street Railway Co. et al., 188 S. W. 65. The wife's suit against the city was before this court. Sutter v. Kansas City, 138 Mo. App. 105, 119 S. W. 1084. As the facts of the case are fully set forth in the opinions in the two cases supra, it is not necessary for us to again state them, except as is necessary in discussing some of the points raised in this appeal.

The points urged by the defendant Metropolitan Street Railway Company will be first considered. The first point made is that said defendant's demurrer to the evidence should have been sustained. The case was pleaded, tried, and submitted to the jury as to the defendant street railway company on the theory that the bricks were placed on the parkway between the curb and sidewalk and on the sidewalk, making the sidewalk unsafe and dangerous; that there were bricks scattered along the sidewalk which were placed there by children while playing; that plaintiff's wife stumbled over one of these last-named bricks and fell upon the brick pile; and that the negligence of said defendant consisted in the piling of said material and allowing it to remain so piled in such dangerous situation, without providing it with lights and barriers as provided by an ordinance of Kansas City, which was pleaded.

It is the contention of the street railway company that there is no evidence that the failure to place at each end of the pile of bricks a red light in such position as to shed its light upon the same was the proximate cause of plaintiff's injury, because this defendant says the sole cause of the accident was the acts of the children in placing bricks on the sidewalk. When this case was before the Supreme Court (Sutter v. Metropolitan, supra, 188 S. W. loc. cit. 88), that court said:

"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 my 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 is urged by the street railway company that the Supreme Court in using the language quoted was discussing the common-law duty of the company with reference to the danger created by the brick pile and the children placing bricks on the sidewalk, and not the statutory duty created by the city ordinance. If this "be true, we cannot see what difference it would make, The Supreme Court, in using the language quoted, evidently had in mind the principle of law which provides that, when the injury proceeds from two causes operating together, the party in putting in motion one of them 13 liable the same as though it was the sole cause, for he who contributes to the wrong is answerable as doer. Wright v. Kansas City Terminal Ry. Co., 195 Mo. App. 480, 193 S. W. 933, and cases therein cited. The unlighted dangerous pile of bricks concurred with the presence of the loose bricks on the sidewalk to cause the injury to plaintiff's wife. Plaintiff could have relied on said defendant's common-law duty to light the dangerous brick pile, but he did not destroy his case by setting up the ordinance in connection with other acts of negligence.

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 brick 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 piece 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 end 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 diminishes," 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 cause of the injury. This case does not come within that class where an entire failure to contain all the...