Wagner v. Kansas City

• Decision Date: 22 May 1916
• Docket Number: No. 12038.,12038.
• Citation: 186 S.W. 1129
• Parties: WAGNER v. KANSAS CITY.
• Court: Missouri Court of Appeals

186 S.W. 1129

WAGNER v. KANSAS CITY.

No. 12038.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Rehearing Denied June 12, 1916.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by Dora Wagner against Kansas City. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

F. M. Hayward and A. F. Evans, both of Kansas City, for appellant. J. H. McVay and Park & Brown, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for damages alleged to have resulted to her by reason of the negligence of defendant in maintaining its streets in a dangerous condition for travel with horse and vehicle. She recovered judgment in the trial court.

Forty-Fourth street runs east and west, and Broadway, with which it intersects, runs north and south. Both have been opened and maintained for travel by defendant city for a long time, including the place of intersection. There was abundant evidence tending to show that at the point of intersection, on account of the slope of the ground and the filling up of a catch-basin, outlet for the water was shut off, causing it to collect and stand, so that a "mudhole" was created, forming a partial obstruction to travel. The city had knowledge of this condition, but plaintiff had not. She had only driven there the one time, which forms the basis for this controversy.

At about half past 8 o'clock in the evening of the 29th of August, 1912, she was driving a gentle horse west on Forty-Fourth street. She had in company with her in her buggy a lady friend, who was holding plaintiff's baby. On reaching Broadway, the horse's front feet went down into the water and mud and he began to slip and made effort to back out of the hole, and, in doing so, backed against an embankment, overturned the buggy, and threw plaintiff and her companion out. Besides the injury in falling out, plaintiff was struck by one of the horse's hoofs, in his effort to extricate himself.

There is no necessity for a more extended or detailed statement. Only two points are mentioned against the judgment — one, that improper evidence was admitted, in that it was allowed to be shown that other horses and vehicles had mired at the same place. Formerly it was held that such evidence tended to raise collateral issues and was inadmissible (Goble v. Kansas City, 148 Mo. 470, 50 S. W. 84), but a later decision pronounces such evidence to be proper (Charlton v. Railway, 200 Mo. 413, 442, 98 S. W. 529).

The next objection to evidence was that made to a question asked plaintiff's physician to the effect whether the condition he found her in after she was hurt might or could produce the nervous debility and condition he had described....