Sutton v. Kansas City Star Co.

• Decision Date: 03 October 1932
• Docket Number: No. 17556.,17556.
• Parties: SUTTON v. KANSAS CITY STAR CO.
• Court: Missouri Court of Appeals

54 S.W.2d 454

SUTTON v. KANSAS CITY STAR CO.

No. 17556.

Kansas City Court of Appeals. Missouri.

October 3, 1932.

Rehearing Denied November 21, 1932.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Report."

Action by Michael Sutton against the Kansas City Star Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Mosman, Rogers & Buzard and Don E. Black, all of Kansas City, for appellant.

Cowgill & Popham and John F. Cook, all of Kansas City, for respondent.

TRIMBLE, P. J.

This is an action for damages arising from personal injuries sustained on account of the alleged negligence of defendant's employees while engaged in the performance of work for defendant. There was a verdict and judgment for plaintiff in the sum of $3,850, and defendant appealed.

The petition alleged that the defendant was engaged in the "general publishing and newspaper business, using trucks therein and facilities for distributing its publications as hereafter set forth," and that on June 8, 1929, while defendant and its servants were engaged in unloading its trucks on Main street between Fiftieth and Fifty-First streets in Kansas City, Mo., they then and there "negligently and unlawfully caused and permitted large bundles and quantities of the papers published by defendant to be placed upon and over the public sidewalk on the east side of said public street, and that while the plaintiff was upon and so using said public street and sidewalk when it was dark or partially dark and he was unable to clearly see, one of said bundles of papers so upon or over said public sidewalk came in contact with his lower extremities, or his lower extremities came in contact with said bundle, causing him to fall and to be injured, as herein set out.

"That defendant negligently caused and permitted said bundle to be and to be placed over and upon said public sidewalk, thus rendering same dangerous and not reasonably safe for the ordinary use of the public, and negligently failed to warn or apprise plaintiff and the public thereof, and negligently failed to light or cause said place to be lighted, and negligently and unlawfully used said public street as aforesaid at said time and place, and he alleges that his injuries resulted directly from said negligent acts and omissions of defendant, same acting severally and concurrently, his said injuries being as follows:"

The petition then went on to allege the breaking of plaintiff's left arm and bruises and a violent and lasting shock to his entire nervous system, for which he prayed judgment for $5,000.

Defendant's answer consisted of a general denial coupled with a plea of contributory negligence, in that plaintiff "carelessly and negligently failed to use his eyes and senses in looking, seeing, and observing where he was going, and he negligently and carelessly walked upon and against and stumbled over a bundle of papers without looking where he was going or what he was doing, by reason whereof, he is not entitled to recover in this case."

The reply was a general denial.

Plaintiff testified that on the morning of June 8, 1929, he was injured on Main street between Fiftieth and Fifty-First streets. He was driving his car on his way to Lincoln, Neb., and drove up Main street and stopped on the east side thereof about one-half a block from where a Kansas City Star truck was standing on the west side of the street, facing south and about four feet from the curb; there was also a horse-driven carrier truck standing near.

A man was on the truck in charge of it. Plaintiff went over there to get a morning paper, intending then to eat his breakfast and drive on to Lincoln. He saw the men "unloading the papers over there and I went over and asked the man on the truck for a paper, and he didn't pay any attention to me, so then I went to the carrier and bought a paper from him, and as I turned around, walked north, they threw a bundle of papers and knocked me down and broke this wrist (indicating left wrist).

"Q. Where did the bundle of papers come from that struck you? A. It came from the truck.

"Q. Do you know that yourself? A. Yes. sir.

"Q. And whereabouts did it strike you? A. It struck me right in there (indicating), caught me in between the legs.

"Q. Back of your legs that way? A. Yes, sir.

"Q. And side? A. Yes, sir.

"Q. What effect did it have on you when it struck you? A. It just knocked me down.

"Q. In what position did you fall? A. I fell with both — striking on both wrists.

"Q. On the west side of the street? A. Yes, sir.

"Q. And how close to the curb? A. The delivery boy was right there and I bought the paper and he was right up on the sidewalk, right up by the sidewalk, and I walked on north.

"Q. Were you close to the curb? A. Very close, yes.

"Q. But on the public sidewalk? A. Yes, I was on the sidewalk.

"Q. Did you receive any warning of the fact that they were going to throw that there? A. No, sir, I received no warning."

Plaintiff then testified that after being knocked down he "lay there a little bit, I was kind of stunned"; that he was suffering very much, got sick at the stomach and went over and sat in his car for perhaps a half hour, then drove north with one hand to Thirty-Ninth street, where he got a cup of coffee. then went home and called the doctor, who after advising plaintiff to bathe it in hot water, told him to go to his (the doctor's) house. The doctor had the wrist X-rayed and put the wrist in a splint; that plaintiff has suffered from it ever since, has no grip in that hand, is not able to button his clothes or take care of himself "in the regular way," never had his wrist broken before, nor "the crooked condition" which has been there ever since, "can do it a little" in buttoning his clothes, but has to use his right hand.

On cross-examination, witness said the truck was "one of those big trucks that carry all the papers," had a flat body with a cab on it and "Kansas City Star" on the side. The truck was already "stopped in the street" when he drove down there; there were three paper carriers there but no automobiles, "just the one delivery cart and the big truck." The delivery cart was headed south and "right next to the curb," the curb and sidewalk being "right together." The truck was parked right next to the curb but north and slightly east of it. When he (plaintiff) parked his car on the east side of the street, he was about 50 feet northeast of the truck, and he walked diagonally across the street southwest to the truck. Some papers had already been taken off the truck. They were in bundles; he did not know how many, possibly as many as three. "They were right back of the carrier's cart," but on the curb. When he came up to the truck, he saw the man on it and asked him for a paper. He knew they were not selling papers out there at that time in the morning, and knew that it would be an accommodation if he got one. He got one paper from the man or boy standing at the step at the rear end of the cart, then turned on his right to go north, took one step, and was struck by the bundle and fell. These bundles are the size of the width of the paper; "they bundle them up in half." As to their height, "I don't know. I just got a flash of it as it hit me and I went down. * * * As it hit me I saw it coming and it hit me right there (indicating) and of course I fell. * * * When I first saw it, it was coming at my leg. * * * Yes, sir, the bundle went between my legs. I was over right where the carrier's truck was, right close to the east edge of the sidewalk." He fell face downward. It was "just coming daylight." "It was a little dark, it was coming daylight."

"Q. You could see the street? A. Yes, sir.

"Q. See the man on the truck? A. Yes, sir.

"Q. See the bundles of papers? A. Yes, sir.

"Q. They were out there close to the sidewalk? A. Yes.

"Q. And you could see them clearly, couldn't you? A. Yes, sir, I saw them."

The street lights were still burning. The color of the sidewalk "was light, light cement, whitish." The bundles of papers were white. When the bundle struck him he was on the west side of the truck, about four feet away, with nobody between him and it.

It was in evidence that each bundle would weigh about 50 or 60 pounds; and that the time was around 4:15 in the morning.

It readily appears from the foregoing that the charge in the petition stated a cause of action for negligently placing bundles of papers on the sidewalk over which plaintiff fell and broke his wrist.

But plaintiff's evidence is that he was walking past the truck, saw the bundles on the sidewalk and knew they were there, but that his injury was caused by his being struck and hurled to the sidewalk by a bundle that was thrown from defendant's truck against him, and that he did not fall over a bundle lying on the sidewalk and receive his hurt in that way. In other words, the case pleaded in the petition was not the case made by the evidence. For this reason, defendant, at the close of plaintiff's case, offered, or attempted to offer, a general demurrer thereto, which the court overruled. Defendant thereupon successively and specifically demurred, or attempted to demur, to the evidence as to each of the charges of negligence pleaded in the petition, namely, that of negligently causing bundles of papers to be placed on the sidewalk which bundles plaintiff could not see because of the darkness, of negligently failing to warn plaintiff of their presence on the sidewalk, of negligently failing to light the place, of negligently and unlawfully using said public street, and to the charge that the injury resulted directly from all such negligent acts operating concurrently and severally. All the so-called demurrers were overruled, whereupon defendant introduced its evidence, during the course of which plaintiff asked "leave to amend the petition by interlineation, writing into the fourth line of the second...