The City of Arkansas City v. Payne

• Decision Date: 05 June 1909
• Docket Number: 16,057
• Citation: 80 Kan. 353,102 P. 781
• Parties: THE CITY OF ARKANSAS CITY v. EVELYN S. PAYNE
• Court: Kansas Supreme Court

102 P. 781

80 Kan. 353

THE CITY OF ARKANSAS CITY v. EVELYN S. PAYNE

No. 16,057

Supreme Court of Kansas

June 5, 1909

Decided January, 1909.

Error from Cowley district court; CARROLL L. SWARTS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Pleadings--Admissions. Where a plaintiff files a petition in an action, to which the defendant files an answer and cross-petition, which is afterward dismissed such pleading may be used by the plaintiff as evidence upon the trial, if it contain statements which amount to admissions of the defendant material to the plaintiff.

2. PERSONAL INJURIES--Measure of Damages--Future Pain and Suffering. A person who recovers damages for a personal injury is entitled to compensation for future pain and suffering, where the evidence shows that such pain and suffering will be a reasonable result from the injury sustained.

3. INSTRUCTIONS--Negligence. Instructions examined and sustained.

Faulconer & Cunningham, for the plaintiff in error.

Charles L. Brown, and J. E. Torrance, for the defendant in error; Hackney & Lafferty, of counsel.

OPINION

GRAVES, J.:

This action was commenced in the district court of Cowley county against the city of Arkansas City, by Evelyn S. Payne, to recover damages for injuries sustained by her in falling through a hole in a sidewalk of said city. She recovered a judgment, and the city prosecutes error. The alleged errors consist of the erroneous admission of testimony and misleading and erroneous instructions given to the jury.

The hole in the sidewalk which caused the injury was made by an adjacent property holder, for his own convenience, under an arrangement with the city. When the original petition was filed the city caused this property holder to be made a party defendant, and filed a cross-petition against him. Afterward this cross-petition was dismissed, and the case proceeded between the plaintiff and the city alone. Upon the trial the plaintiff was permitted to read this answer and cross-petition as evidence. It contained statements which amounted to admissions by the city of material facts which the plaintiff would otherwise have been compelled to establish by other testimony. Such admissions are proper evidence, from whatever source obtained. We are unable to see any error in permitting the pleading to be read in evidence. (Solomon Rld. Co. v. Jones, 30 Kan. 601, 2 P. 657; Juneau v. Stunkle, 40 Kan. 756, 20 P. 473; Lewellen C. Lane v. Choctaw, Oklahoma & Gulf R. Co., 19 Okla. 324, 91 P. 883.) This has long been the practice in this state, but the reason for the rule is so clearly stated by Mr. Chief Justice Burford in the case last cited that we quote therefrom as follows:

"The weight of authority and better-reasoned cases support the rule that a pleading or an admission or allegation in a pleading, notwithstanding it may have been withdrawn, stricken out or superseded by an amended pleading, is competent in evidence, and may be introduced against the party from whom it proceeded, like any other admission or declaration, subject, however, to explanation by the party who made it. This rule rests on the general principle that whatever a party has said about his case may be proved against him, and whatever writing he has signed or authorized may be, if relevant, introduced against him, the weight of such evidence to be left with the court or jury trying the case." (Page 328.)

Complaint is made of the definition of ordinary care, as given by the court in an instruction which reads:

"Ordinary care is such care as is usually exercised by persons of ordinary care, caution and prudence in the age and country and under the same or similar circumstances as a party charged with like negligence."

From a large number of definitions counsel have selected, as a fair standard, one which reads:

"That care which ordinarily cautious, prudent persons would exercise under the same, like or similar circumstances."

We think the two substantially alike. If it be conceded that the one given by the court is less clear...