Willis v. Kansas City Terminal Ry. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 12475.,12475.
• Citation: 199 S.W. 736
• Parties: WILLIS v. KANSAS CITY TERMINAL RY. CO.
• Court: Missouri Court of Appeals

199 S.W. 736

WILLIS v. KANSAS CITY TERMINAL RY. CO.

No. 12475.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

On Rehearing, December 31, 1917.

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

"Not to be officially published."

Action by Louisa J. Willis, administratrix of W. R. Willis, deceased, against the Kansas City Terminal Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, of Kansas City, for appellant. Sparrow & Page, of Kansas City, for respondent.

BLAND, J.

Plaintiff below recovered the sum of $5,000 for personal injuries sustained by reason of his falling into an excavation, or cut, made by the defendant, and the latter has appealed. While this case was pending in this court plaintiff died, and the cause has been revived in the name of his administratrix.

Defendant's first point is that a demurrer to the evidence should have been sustained. The evidence shows that deceased, a man 59 years of age and a stonecutter by trade, was walking south on the sidewalk on the west side of Woodland avenue in Kansas City, Mo., between 5:30 and 6 p. m. of the evening of February 10, 1913, when he fell into an excavation, or cut, made by defendant where its tracks cross said Woodland avenue.

The evidence further shows that about two years prior to the accident there had been a bridge, or viaduct, across the place where this cut had been dug, and that deceased had passed over said viaduct at that time, but had not been over its since, and did not know of the unbridged cut, which had been greatly enlarged in the meantime. The evidence shows that this excavation was 150 feet across and 100 feet deep, and had some girders placed in it about 20 feet south of the north bank of the excavation, which were to form a part of a new viaduct that was to be constructed across the cut; that these girders were beneath the surface of the street; that the sidewalk had two stringers extending out over the cut, so that a step-off was made from the sidewalk into the cut, into which deceased stepped, falling 30 feet, to his severe injury. The evidence further shows that there was no barricade or lights of any kind present.

The evidence further shows that deceased's eyesight was not good, and that he had on a pair of spectacles the lens of which had been cracked by rocks flying up while he was engaged in his work as a stonecutter.

There is a great deal of evidence in the record as to whether it was light or dark at the time of the accident, but it is very difficult to tell exactly how dark it was at the time. Some witnesses say that it was "getting dark," others, "was rather dark," and some testified that "it was dark." From the evidence we conclude that it must have been about dusk. One witness testified that after deceased fell some men and boys gathered at the top of the embankment where he had fallen, and that it was light enough for her to see these men and boys 125 to 150 feet away and to distinguish them as men and boys. Another witness testified that she saw the deceased pass her house, 15 to 20 feet away, before the accident, and that she recognized deceased shortly after the accident to be the man that passed her house. Some other witnesses testified that they looked down into the cut and saw deceased after the accident and could tell that there was a man lying there. Another witness stated that he saw deceased pass just as the latter fell, and that he was 40 or 50 feet away at the time. A number of boys had been playing ball right near the scene of the accident, and on account of darkness had lost their ball about 30 minutes before, and had just finished hunting for the ball when deceased fell. Some of these witnesses testified that it was "getting dark" at the time deceased fell. Deceased himself testified that he could see an object above the ground probably 40 or 50 yards away, but that he could not see the excavation. On this point he testified as follows:

"A. Well, I could see some things plain enough, but it was pretty dark. Looking down at the ground that way when it is kind of dark, you can't see very well, but when you look at the sky, and there is anything between you and it, you can see it better than if it is down on the ground. * * * Q. Well, the fact is that you could see very well? A. Well, I thought I could, and I was getting along all right, until I got to that place, and if I could have seen what was there, it is a cinch that I would not have walked right into it. A blind man could not have got along there without going into it. Q. It was not night, was it? A. Well, it was dark. * * * Q. Had it gotten dark at that time — real dark? A. Well, it had not gotten right plumb dark. Q. How far could you see ahead of you at that time? A. Looking up, I expect you could see for 40 or 50 yards around. Q. Now, Mr. Willis, do you mean to tell this jury that you could see 40 or 50 yards at the time that you met this injury? A. I could see some things. Q. What? A. I could see a building or something that would loom up like that. Q. You could see a building that would loom up at that distance between you and the horizon or sky line? A. Yes, sir."

Deceased testified that at the time he fell he was looking where he was going, but he very frankly stated that he was walking along as persons usually do, and that he could not state positively that he was looking at the sidewalk in front of him at the time he fell; that he often looked at objects as he passed along the street, and that he could not say whether he was looking at such objects at the time he fell, but "I was just looking where I was going, or trying to see where I was going the best I could." "Of course, I was paying attention to where I was walking the best I could, but was not staring around to see what I could see."

Defendant contends under this evidence that deceased was guilty of contributory negligence as a matter of law, and that therefore a demurrer to the evidence should have been sustained. In support of this contention counsel for defendant argue that this was a large excavation, could be readily seen, and that deceased was not looking where he was going. Defendant relies largely on the case of Ryan v. Kansas City, 232 Mo. 471, 134 S. W. 566, 985, to sustain its contention that deceased was guilty of contributory negligence. On account of some things to be hereafter said it is unnecessary for us to say whether this case sustains defendant's contention.

While the excavation was a large one, and could ordinarily be seen by pedestrians in broad daylight, the evidence as disclosed in this record far from shows that it was broad daylight at the time deceased fell into the excavation. While some of the witneses stated they could distinguish objects as far away as 150 feet, this by no means is proof of the fact that it was broad daylight, and in view of the condition of deceased's eyes, and the lack of daylight as he explains it, we cannot say as a matter of law that under the case of Smith v. Kansas City, 184 S. W. 82, a more recent case than that of Ryan v. Kansas City, supra, deceased was guilty of contributory negligence. See, also, the case of Aiken v. Sidney Steel Scraper Co., 198 S. W. 1139, decided by this court, but not yet officially reported.

While deceased was required to use ordinary care in walking along the street, he had a right, in the absence of knowledge to the contrary, to feel secure and to presume that the defendant had performed its duty in keeping the sidewalk reasonably safe. So long as it was shown that the defect was there and unknown to deceased, he had a right to presume that the sidewalk was safe. Smith v. Kansas City, supra.

We are fully aware of the fact that the Supreme Court has not at all times been consistent in reference to what conduct on the part of a plaintiff in walking upon a street would amount to contributory negligence. See Heberling v. Warrensburg, 204 Mo. 604, 103 S. W. 36; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Wheat v. City of St. Louis, 179 Mo. 572, 78 S. W. 790, 64 L. R. A. 292; Woodson v. Ry., 224 Mo. 685, 123 S. W. 820, 30 L. R. A. (N. S.) 931, 20 Ann. Cas. 1039; Coffey v. Carthage, 186 Mo. 585, 85 S. W. 532; Ryan v. Kansas City, supra; Smith v. Kansas City, supra. However, we are required to take the last expression of the Supreme Court on the subject, and therefore we follow the case of Smith v. Kansas City, supra. While it is true that a majority of the court in that case concurred in the result only, the result reached under the facts amounts to a holding that a person walking upon a sidewalk of a city in the ordinary manner, in the absence of surrounding circumstances that would cause a pedestrian to suspect or apprehend danger, has a right to assume that the sidewalk is safe, and is not required to look for defects therein, in, but is only required to use ordinary care, or that care that a person ordinarily uses who walks along the streets of a city under the condition present in the particular case.

Appellant makes the point that the court erred in the admission of testimony given by deceased's physician, in that the latter was permitted to state his conclusion as to whether or not deceased's kidney trouble resulted from the injury. The testimony of the physician was that "I concluded that the kidney trouble resulted from the injury." This testimony was the conclusion of the doctor and a statement of an ultimate fact that the jury were...