Turner v. Southwest Missouri Railroad Company
| Citation | 120 S.W. 128,138 Mo.App. 143 |
| Parties | W. A. TURNER, Respondent, v. SOUTHWEST MISSOURI RAILROAD COMPANY and the CITY OF CARTHAGE, Appellants |
| Decision Date | 17 May 1909 |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellant, railroad company.
The disposition and character of plaintiff's horse being in issue, the court erred in excluding evidence showing plaintiff's horse was afraid of and shied at automobiles and motorcycles, and as to being high strung and skittish. This evidence tended to show knowledge on part of plaintiff that his horse was scary and liable to scare at a street car and run away. If, with this knowledge, plaintiff drove his horse on a street with a car line on it, he did so at his own risk. Oates v. Railroad, 168 Mo. 547; O'Neill v. Blase, 94 Mo.App. 667; 2 Cyc., p 377, par. 3; 6 Thompson, Neg., p. 752, sec. 7852; Golden v. Clinton, 54 Mo.App. 144; Brown v. Glasgow, 57 Mo. 156; Elliott, Roads and Streets, 449; Moore v Transit Co., 126 Mo. 276; Kaiser v. St. Louis, 185 Mo. 374; Brannock v. Elmore, 114 Mo. 64, par. 4; Padley v. Catterlin, 64 Mo.App. 641; Marx v Hart, 166 Mo. 522-3, par. 4; Hellman v. Somerville, 212 Mo. 430, par. 2; Bank v. Nichols, 202 Mo. 323. An oral admission may be proved by any person who heard it. If a witness cannot give the exact words of a conversation, he may state the substance of it. 16 Cyc., p. 1037, par. B. Testimony of a party on a trial may be used against him on a subsequent trial of the same case and may be proved by any one who heard it and is absolutely primary evidence. 16 Cyc., pp. 939, 940, par. B, note 13; 16 Cyc., pp. 976, 4977, par. V. A single instruction intended to present the law of the case should cover the whole case, especially where it directs a judgment for plaintiff, and if it does so without requiring the jury to consider material questions presented by the pleadings and evidence of the defendant, it is erroneous and precludes defense relied on by defendant. Scanlon v. Gulick, 199 Mo. 455 and citations; Austin v. Transit Co., 115 Mo.App. 146; Wojtylak v. Coal Co., 188 Mo. 260; Staples v. Canton, 69 Mo.App. 592; Tonerey v. Railroad, 129 Mo.App. 599. A city is only required to keep its streets in a reasonably safe condition for travel therein by ordinary modes, under ordinary circumstances, and there was no evidence that the pile of dirt constituted a necessarily dangerous obstruction in the street. Young v. Kansas City, 115 Mo.App. 602; Hesselbach v. St. Louis, 179 Mo. 505. A temporary use of a street for the purpose of making improvements and for a reasonable time, is a lawful use, and what is a reasonable time, is to be determined by the circumstances of each case. Hesselbach v. St. Louis, 179 Mo. 505; Christman v. Meierhoffer, 116 Mo.App. 46; Frick v. Kansas City, 117 Mo.App. 488. In this case the evidence showing that plaintiff knew of the alleged obstruction, and, at the time of the accident, the evidence showing that it was light and that the alleged obstruction could be seen across the street and that there were forty to fifty feet of clear unobstructed roadway upon which plaintiff could have driven, he was not entitled to recover and defendant's peremptory instructions should have been given by the court. Craig v. Sedalia, 63 Mo. 417; Shonhoff v. Railroad, 97 Mo. 151; Tritz v. Kansas City, 84 Mo. 642; Clarke, Accident Law (Street Railways), secs. 113, 114, pp. 333-4; Hesselbach v. St. Louis, 179 Mo. 522; Ruppenthal v. St. Louis, 190 Mo. 227; Wheat v. St. Louis, 179 Mo. 572; Seibert v. Railroad, 188 Mo. 671; Morie v. Transit Co., 116 Mo.App. 20.
Roy A. Hockensmith and J. D. Harris for appellant, City of Carthage.
The court erred in rejecting this evidence as it was competent for the purpose of impeaching plaintiff's testimony, and was admissible for the further reason that it was an admission against his interest. Hays v. Waller, 2 Mo. 222; State v. Wertz, 191 Mo. 580. Where the impeaching evidence is offered against one who is a party to the suit, no foundation for the offer need be made. Sanders v. Clifford, 72 Mo.App. 550; Owens v. Railroad, 95 Mo. 183; State v. Wertz, 191 Mo. 580. And since it was a declaration against his interest and Turner being a party to the suit, no foundation was necessary. The trial court committed reversible error in refusing to give instruction U. Canter v. St. Joseph, 126 Mo.App. 636; Brown v. Mayor et al. of Glasgow, 57 Mo. 158.
Thomas & Hackney, Howard Gray and J. H. Bailey for respondent.
To admit evidence of the habits of a horse and the actions of a horse previous to an accident, the evidence of previous conduct must be directed to the horse under like circumstances to the circumstances in controversy. Johnston v. Tuttle, 81 N.E. 886; Lynch v. Moore, 154 Mass. 335. The doctrine of concurrent negligence is firmly rooted in the jurisprudence of this State. The defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with the Act of God, or with an inanimate cause, and becomes a part of the direct and proximate cause of the injury, although not the sole cause. Harrison v. Kansas City El. Lt. & Pr. Co., 195 Mo. 606; Newcomb v. Railroad, 169 Mo. 422; Vogelgesang v. St. Louis, 139 Mo. 127; Bassett v. St. Louis, 53 Mo. 290; Burns v. St. Joseph, 91 Mo.App. 489; Brash v. St. Louis, 161 Mo. 438. Instruction No. 2 for the plaintiff was properly given. Lindsay v. Kansas City, 195 Mo. 166; Russell v. Columbia, 74 Mo. 480; Smith v. Hayti, 130 Mo.App. 321; Walker v. Kansas City, 99 Mo. 647; Kossman v. St. Louis, 153 Mo. 293; Fockler v. Kansas City, 94 Mo.App. 464.
This is a suit for damages because of defendants' negligence.
The defendant city granted a charter to its co-defendant railroad company to lay down a line of railroad, over which to operate its cars on Fourth street between Main and Grant streets, and on Grant street north to Third street, and west on Third to Main street, and south on Main street to the southern boundary of the city. At the times herein mentioned, the defendant railroad company had built its line of railroad and was operating its cars over said streets by the use of electricity. The company, in doing work in and about its tracks, dug up the earth at the intersection of Main and Fourth streets and piled it up near the east line of Main street and near the southwest corner of the public square.
Plaintiff's evidence is to the effect that the pile of dirt had remained on said street for several weeks prior to the 29th day of January; that it was from fifteen to thirty inches in height; that Main street was thirty-one feet, six inches wide between the curbings; that the track of defendant was laid about the middle of the street; that it turns east from Main onto Fourth street at the southwest corner of the square and makes a loop around the square and intersects with South Main street again at the southwest corner of the square; that in making the turn off of Main street to Fourth street, the track comes within two feet of the curb at the southeast corner of the cross street; that the cars bound for Galena, after making the circuit of the square, were usually stopped in front of the business house of Holbrook, the car projecting slightly south of the north line of Fourth street; that said pile of earth on Fourth street was within about eight feet of the east line of Main street and extended about six feet into Fourth street from the curb; that on said 29th day of January, at about 6 o'clock p. m., the plaintiff was driving his horse attached to a two-wheeled cart north on Main street; that at or near the time he reached the point where he intended to turn to the right for the purpose of going to his place of business, the noise of the escape of air from one of defendant's cars standing on the north side of Fourth street caused the horse to shy and swerve to the south as it turned east, whereby the right wheel of the car ran over the pile of dirt, which capsized the cart and threw the plaintiff out; that plaintiff's horse at the time he approached the place mentioned was in a trot and that before he reached it he slowed down; that after plaintiff fell the cart turned over upon him; that plaintiff was in control of the horse and was driving in an ordinary and careful manner until the car made the noise by escaping air; and that the horse was kind and easily controlled. The plaintiff received a severe injury by his fall. There were no lights or guards placed around the pile of dirt to warn travelers of its existence.
Defendants' evidence tends to show that all the dirt piled upon the street prior to the 28th day of January had been removed; that there was sufficient room between the pile of dirt and the curb for vehicles to pass in safety; that plaintiff was driving at a rapid gait; that there was sufficient light to enable a traveler to see the pile of dirt; that, although plaintiff's horse usually was gentle, it had a habit of shying and shied at street cars; that plaintiff lost control of him which caused him to run upon the pile of dirt; that after passing over the pile of dirt nothing happened until the horse struck a stone cross-walk in the street when he slipped and fell, turning the cart over and throwing plaintiff out.
Plaintiff recovered judgment for $ 4,000, from which defendants appealed.
In the trial of the case, the court excluded evidence offered by defendants to prove that plaintiff's horse was afraid of and shied at automobiles and motorcycles. The testimony was offered to show knowledge on the part of plaintiff that his horse was likely to scare at a street car and run;...
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