Warren v. Kansas City
| Decision Date | 08 June 1953 |
| Docket Number | No. 2,No. 43098,43098,2 |
| Citation | 258 S.W.2d 681 |
| Parties | WARREN v. KANSAS CITY |
| Court | Missouri Supreme Court |
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor and T. James Conway, Asst. City Counselor, Kansas City, for appellant.
John L. Sheridan, Donald E. Raymond, Arthur C. Popham, and Sam Mandell, Kansas City, Popham Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondent.
BARRETT, Commissioner.
On August 17, 1949, Thomas R. Warren, Jr., then nine years of age, was riding his bicycle on the sidewalk on South Benton Street. As he crossed over a rather rough, cracked driveway comprising the sidewalk between the properties at 3818 and 3820 South Benton the bicycle began to wobble, and about ten feet farther on one of the wheels struck a section of the concrete sidewalk that was raised an inch and a half or two inches and he was thrown into the truck of the elm tree in the parkway. To recover damages for his resulting personal injuries his mother, as next friend, instituted this action against the adjoining property owners and Kansas City. At the close of all the evidence the trial court directed a verdict in favor of the property owners. The court submitted the city's liability in negligently maintaining a sidewalk that was not reasonably safe and the jury returned a verdict in favor of the city. The trial court sustained the plaintiff's motion for a new trial, as to the city, upon the specified ground 'that the court erred in giving to the jury instructions marked 'A-B and C,' and each of them,' and, in so doing, the trial court expressly 'overruled (on) all other grounds assigned in said motion.' Upon this appeal by the city it is insisted that the instructions were not prejudicially erroneous and that the trial court erred in granting a new trial upon the sole specification that they were. The plaintiff insists that the instructions were erroneous and in that connection urges that the granting of a new trial is the exercise of judicial discretion which will be upheld unless abused or clearly erroneous.
As urged, when a trial court sustains a motion for a new trial an appellate court may be more liberal in upholding the court's action than it would in reversing a judgment on the same ground, Teague v. Plaza Express Co., 356 Mo. 1186, 1192, 205 S.W.2d 563, but it does not follow merely because of the trial judge's superior position to determine the effect of error that the granting of a new trial is always the exercise of judicial discretion which will be upheld in any event. Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 246 S.W.2d 749. In all the cited cases in which this rule has been stated and applied the instructions were in fact erroneous, Hensley v. Dorr, Mo.Sup., 191 S.W.2d 663; Thompson v. St. Joseph Ry., Light, Heat & Power co., 345 Mo. 31, 45, 131 S.W.2d 574, or a new trial was specifically granted upon some truly discretionary ground, as error in the admission of evidence, Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718, or that the verdict was the result of passion or prejudice, Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 340, 8 A.L.R.2d 710, or that abstract or cautionary instructions overemphasized an important issue such as the burden of proof, or were without application to the specific facts and therefore misleading and confusing. Morris v. E. I. Du Pont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 39; Rea v. Feeback, Mo.Sup., 244 S.W.2d 1017; Wallace v. Herman Body Co., 349 Mo. 1093, 163 S.W.2d 923. If in point of fact an instruction is not erroneous as to a matter of law or it is not fairly demonstrable upon the record that the instruction was misleading or may have otherwise deprived the losing party of a fair trial the rule is inapplicable. Mendenhall v. Neyer, 347 Mo. 881, 894, 149 S.W.2d 366, 374; Took v. Wells, 331 Mo. 249, 53 S.W.2d 389; Jarboe v. Kansas City Public Service Co., 359 Mo. 8, 220 S.W.2d 27. In this case the order granting a new trial did not specify a discretionary ground, Supreme Court Rule 1.10, it was sustained upon the sole ground that 'the court erred in giving to the jury instructions marked 'A-B and C" and that is not a sustaining of a motion for a new trial on a discretionary ground but a mere finding that the instructions were erroneous as a matter of law. Took v. Wells, supra; Mendenhall v. Neyer, supra; Cooper v. 804 Grand Bldg. Corp., Mo.Sup., 257 S.W.2d 649.
Instruction A was the defendant's instruction on the subject of contributory negligence. It hypothesized that if Tommy saw or should have seen the condition of the sidewalk and that it was dangerous to ride his bicycle over it and that in so riding over the sidewalk 'he was guilty of negligence, and if you find that such negligence, if any, directly caused or directly contributed in any degree to his fall and injury, if so, then your verdict must be for the defendant Kansas City.' The plaintiff urges that in employing the phrase 'in any degree,' the instruction is erroneous. It is urged, since Tommy was nine years of age at the time of the accident, that he was charged with exercising that degree of care for his own safety that a boy of his age, experience and capacity would exercise under similar circumstances and that instruction A, in omitting any reference to his age, requires him to exercise the care of an adult.
While instruction A was upon the subject of contributory negligence it did not in point of fact purport to set forth the degree of care to be exercised by Tommy. The first paragraph of the instruction told the jury that it was the city's duty to exercise ordinary care to keep its sidewalks in a reasonably safe condition for travel for those using them 'who are themselves in the exercise of ordinary care for their own safety.' The instruction then hypothesized the facts, which, if found by the jury, would constitute contributory negligence on Tommy's part. It is true that he was not chargeable with exercising the care of an adult, the 'test of a minor's responsibility for conduct charged to have been negligent is the caution usually displayed by ordinary children of his age and capacity.' Fry v. St. Louis Transit Co., 111 Mo.App. 324, 333, 85 S.W. 960, 962; annotation 174 A.L.R. 1080. And, in cases involving the conduct of minors, it is appropriate that instructions cover the subject of the care required of minors. Donoho v. Vulcan Iron Works, 75 Mo. 401; Schmitz v. St. Louis, I. M. & S. Ry. Co., 119 Mo. 256, 24 S.W. 472, 23 L.R.A. 250; Ruschenberg v. Southern Electric R. Co., 161 Mo. 70, 61 S.W. 626. Instruction A does not say that Tommy was chargeable with exercising the care of an adult, it simply charges persons using the sidewalk with exercising ordinary care and omits any reference to his age and capacity.
In addition, the plaintiff offered and the court gave three other instructions upon the subject of contributory negligence. Instruction 2 is as follows: 'The court instructs the jury that the term contributory negligence or negligence as applied to plaintiff means failure to exercise such care as persons of his experience and capacity and his age at the time of his alleged fall would usually exercise under similar circumstances, and if you find that plaintiff at all times used such care as persons of his then age, experience and capacity would usually exercise under similar circumstances, then you cannot find that there was any contributory negligence on his part.' Instruction three plainly placed upon the city the burden of proof as to contributory negligence. Instruction four again repeated the degree of care required of Tommy and told the jury that even though they believed that he 'priorly knew of the condition of the sidewalk thereat and that it was cracked and broken and was in a dangerous, defective and not reasonably safe condition, if so, if the condition of said sidewalk thereat and the danger of using it was not so glaringly obvious and dangerous that no ordinary prudent person of the then age, experience and capacity of plaintiff would have attempted to pass over it thereat and use it, then you cannot find that plaintiff was contributorily negligent from the fact alone and of itself that plaintiff attempted to pass over it and use it, if so, at said time and place.' And so in the plainest of language and as favorably to the plaintiff as it could...
To continue reading
Request your trial
-
Bridges v. Arkansas-Missouri Power Co.
...(but, on the instant facts, more convenient) order.2 Dodwell v. Missouri Pac. R. Co., Mo., 384 S.W.2d 643, 647(7); Warren v. Kansas City, Mo., 258 S.W.2d 681, 683(3); Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57, 58(5); Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071, 1079(16); Spillane v. ......
-
Hosford v. Clark
...v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 81(8); Layton v. Palmer, Mo., 309 S.W.2d 561, 570(20), 66 A.L.R.2d 1242. In Warren v. Kansas City, Mo., 258 S.W.2d 681 (upon which instant defendant primarily relies), defendant's criticized instruction on contributory negligence 'did not in po......
-
Wilson v. White
...Smiley v. Jessup, supra, 282 S.W. loc. cit. 112(6); Saller v. Friedman Bros. Shoe Co., supra, 109 S.W. loc. cit. 797.4 Warren v. Kansas City, Mo., 258 S.W.2d 681, 683(3); Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57, 58(5); Goodwin v. Eugas, 290 Mo. 673, 236 S.W. 50, 53(2); Jackson v. But......
-
Ketcham v. Thomas
...here, or similar language, has never been held to constitute prejudicial error unless it plainly misdirected the jury. Warren v. Kansas City, Mo.Sup., 258 S.W.2d 681. Neither do we agree that instruction 3, when read with the other instructions, assumed 'great negligence' on the part of eit......