Sutter v. Metropolitan St. Ry. Co.

• Decision Date: 03 July 1916
• Docket Number: No. 17043.,No. 17046.,17043.,17046.
• Parties: SUTTER v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Supreme Court

188 S.W. 65

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

No. 17043.

No. 17046.

Supreme Court of Missouri, Division No. 1.

July 3, 1916.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Charles Sutter against the Metropolitan Street Railway Company and another. From an order granting plaintiff a new trial, defendants appeal. Affirmed.

John H. Lucas and Warner, Dean, McLeod & Langworthy, all of Kansas City, for appellant Metropolitan St. Ry. Co. A. F. Evans and Francis M. Hayward, both of Kansas City, for appellant Kansas City. T. J. Madden, of Kansas City, for respondent.

GRAVES, J.

Plaintiff is the husband of one Kate Sutter, and sues for damages to him by reason of an injury to his wife charged to have been occasioned by the negligence of the defendants. Mrs. Sutter fell and was injured on a sidewalk on Charlotte street, between Eighteenth and Nineteenth streets in Kansas City, Mo. The suit was for $10,000 damages. Upon a trial in the circuit court, the jury returned a verdict for both defendants. Motions for new trial were filed, and one year or more thereafter the trial court sustained said motions, for the expressed reason that "the verdict is against the weight of the evidence and law of the case." From this order both defendants have appealed and hence the two numbers to the case. These appeals were consolidated and submitted together.

The charges of negligence in the petition are thus stated:

"That between Eighteenth and Nineteenth streets said Charlotte street was paved with brick, and a sidewalk was built on each side of said street. That some time during the spring or summer of 1903 said defendant Metropolitan Street Railway Company, under permission and authority from said defendant Kansas City, tore up the pavement in the middle of said street for the purpose of laying its track therein, and said railway company threw and piled said brick on the east side of said street, and near and upon the curb and sidewalk, and between the sidewalk and the curb, and said material was permitted to remain there for many weeks prior to the injuries to plaintiff's wife as hereinafter set out, and said material made said street and sidewalk unsafe and dangerous, and such conditions prevailed during all the time said material was there, which was a long and unreasonable time, and defendants knew, or should have known by the exercise of due care and caution, of such unsafe and dangerous condition, and in time so that said conditions could by the exercise of ordinary care have been remedied and removed. * * * That said fall and injuries to plaintiff's wife were caused through and occasioned by the negligence of defendants, their officers, agents, and servants, in that said material on said street and curb and on and near said sidewalk rendered said street and sidewalk, including the space between the curb and sidewalk, unsafe and dangerous, in that said material was in an uneven and tumble-down condition where plaintiff's wife fell, and was permitted to remain on and near said sidewalk for a long and unreasonable time prior to said fall and injuries; in that children or other persons, for a long time prior to said fall and injuries, had been in the habit of scattering or laying said brick upon the sidewalk during the evening and nighttime, as well as during the day, and thus obstructing said sidewalk and rendering the same unsafe and dangerous, and defendants knew, or by the exercise of ordinary care could have known, of the habits and acts aforesaid, and had reasons to apprehend a continuance thereof, and failed to exercise ordinary care to avoid the conditions and dangers resulting therefrom; in that said defendants by the use of due care could have remedied or removed said conditions after they knew, or by the exercise of ordinary care could have known, of the same, but failed to do so. Said defendants were further negligent, in that said material constitutes an obstruction and dangerous place, and was permitted to remain at the place where plaintiff's wife was injured, without any lights or barricades or barriers in the nighttime, and without any notice or warning to people passing along or upon said sidewalk of the dangerous condition thereof, and said condition had prevailed for a long time prior to said fall and injuries. Said defendants were further negligent in that said material constituted an obstruction and dangerous place, and was permitted to remain without lights or barriers in the nighttime at the place and at the time plaintiff's wife was injured (which was in the nighttime), and for a long and unreasonable length of time prior thereto, and said defendants failed to inclose said obstructions and dangerous places in the nighttime with good, sufficient, and substantial barriers not less than three feet high, and failed to require the same to be done, and failed to place a red light at either end or side of the same, and failed to require or cause the same to be done, all of which was contrary to and in violation of the provisions of an ordinance of said Kansas City, which at said time was in full force and effect, and by which defendants were bound, governed, and controlled, which ordinance provided, required, and directed that no person should place or deposit any article or thing whatever so as to obstruct or otherwise incumber any sidewalk or street, and that when obstructions or material as heretofore described were placed or permitted to remain on, near, or adjoining any street or sidewalk in said city, that the same should be properly guarded or inclosed with good, sufficient, and substantial barriers not less than three feet high, and that in the nighttime there should be provided and properly placed red lights at each end of such obstructions or dangerous places, so as to shed their light on the same; said ordinance being No. 9258 of the Ordinances of Kansas City, Missouri, of which sections 861, 862, and 870 read as follows, to wit:

"`Sec. 861. Lights and Barriers. Every person who shall for any purpose make or cause to be made any excavation in, upon, under, near or adjoining any street, avenue, sidewalk, alley or other public place, and shall leave any part or portion thereof unobstructed with rubbish, building or other material during the nighttime, shall cause the same to be inclosed with good, substantial and sufficient barriers, not less than three feet high, and shall also place a red light at each end thereof in such position as to shed its light upon such excavation or obstruction and shall keep such lights burning from sunset to sunrise.

"`Sec. 862. Same. Every person who shall in any manner render or cause to be dangerous any street, avenue, sidewalk, alley or other public place, shall from sunset to sunrise provide and properly place such barriers and lights around such dangerous place as are in the preceding section required.'

"`Sec. 870. Obstruction on Sidewalk. No person shall leave, place or deposit or cause to be left, placed or deposited, in or upon any sidewalk, any article or thing whatever so as to obstruct or otherwise incumber the same.'

"That by reason of the premises plaintiff has been damaged in the full sum of ten thousand dollars ($10,000.00), for which amount, together with the costs of this action, he demands judgment."

The defendant Metropolitan Street Railway Company answered: (1) By general denial; (2) plea of contributory negligence; and (3) a plea of res judicata. This last plea was based on the theory that Kate Sutter had sued the Metropolitan Street Railway Company, alleging the same facts as to negligence, and that such suit was brought and prosecuted at the instance of the present plaintiff, and upon trial judgment was entered for defendant. The defendant Kansas City answered: (1) By general denial; and (2) a plea of contributory negligence. Proper replies placed the foregoing matters in issue. This sufficiently states the case for the present.

I. To our mind this case turns upon one proposition, and that is: Was there evidence in this record upon which a verdict for plaintiff could be permitted to stand? The granting of a new trial is a matter largely in the discretion of the trial court. However, that discretion must be judicially, and not arbitrarily, exercised. If the record discloses no evidence upon which a verdict for plaintiff could be permitted to stand, then the act of granting such plaintiff a new trial, when an adverse verdict had been found against him by the jury, would be an unjudicial and arbitrary act, when based on the idea that the verdict was against the weight of the evidence. The discretion lodged by the law in the trial courts as to granting new trials is a judicial discretion, and must be exercised along judicial and...