Woodson v. Metropolitan St. Ry. Co.

• Citation: 123 S.W. 820
• Parties: WOODSON v. METROPOLITAN ST. RY. CO. et al.
• Decision Date: 23 December 1909
• Court: United States State Supreme Court of Missouri

123 S.W. 820

WOODSON v. METROPOLITAN ST. RY. CO. et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1909.

1. EVIDENCE (§ 10) — JUDICIAL NOTICE — CITY STREETS.

Courts cannot take judicial notice that an alleged street on which plaintiff's decedent is claimed to have been injured is one of the public streets of defendant city or within its corporate limits.

2. APPEAL AND ERROR (§ 176) — PRESENTATION OF QUESTION BELOW — DEFECT IN PROOF.

Where, in an action against a city and a street railroad company for the death of plaintiff's decedent by an alleged obstruction on a sidewalk, both the court and counsel for both parties at the trial assumed as a fact that the street on which decedent fell was one of the public streets of the city and within its corporate limits, defendants could not object for the first time on appeal that there was no proof of such fact in the record.

3. MUNICIPAL CORPORATIONS (§ 816) — "SIDEWALK" — OBSTRUCTIONS.

Where a petition alleged that plaintiff's decedent was killed by an obstruction on the sidewalk on the west side of C. street in defendant city, and that the sidewalk was in a dangerous condition by reason of such obstruction, and had been so for a long time, and the proof showed that the obstruction was on the parkway between the paved walk and the curb, and not elsewhere, there was no fatal variance, since the word "sidewalk," in general, means that part of the street intended for pedestrians, and includes all the space between the building line and the curb; pedestrians being entitled, as of right, to use all such space unless specially restricted by ordinance.

4. MUNICIPAL CORPORATIONS (§ 806) — DEFECTIVE STREETS — PEDESTRIANS — CARE REQUIRED.

A pedestrian traveling the streets of a city is bound to exercise reasonable care, and avoid

obstructions which he can easily discover and avoid.

5. MUNICIPAL CORPORATIONS (§ 805) — DEFECTIVE STREETS — OBSTRUCTIONS — AVOIDANCE — CONTRIBUTORY NEGLIGENCE.

Decedent, a man of advanced age, who had for 17 years lived near the point where he was injured, started to cross from the sidewalk over the boulevard to a store on the opposite side of the street and fell on a pile of railroad rails, negligently left on the boulevard for at least five months, and received injuries from which he died. The rails were plainly to be seen and could have been avoided by a short walk around them. Held that, if deceased was in his normal condition and had his senses at the time, he was negligent as a matter of law.

6. NEGLIGENCE (§ 59) — PROXIMATE CAUSE — ACT OR OMISSION — PROBABLE CONSEQUENCE.

The liability of a person charged with negligence does not depend on whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; he being liable for anything which, after the injury is complete, appears to have been a natural or probable consequence of his act or omission.

7. MUNICIPAL CORPORATIONS (§ 800) — DEFECTIVE STREETS — OBSTRUCTIONS — INJURIES TO PEDESTRIAN — ILLNESS — CONCURRING CAUSES — PROXIMATE CAUSE.

Where deceased, while walking along a city street, was overcome by vertigo, or some other condition superinduced by disease, and, on reaching out for a small tree in the boulevard, fell on the pile of rails negligently permitted to remain there by the city, and received injuries from which he immediately died, the proximate cause of his injury consisted of his dazed condiction, which was not negligence, and the other, the negligence of the city in permitting the obstruction on the sidewalk; and, such injury being one which the city could have reasonably anticipated as likely to follow from its negligent act, it was liable therefor.

8. APPEAL AND ERROR (§ 171) — PRESENTATION OF GROUNDS OF REVIEW — THEORY OF CAUSE.

Where plaintiff was not entitled to recover on the theory presented at the trial, she could not sustain a judgment in her favor on appeal on a theory not so submitted, though the petition was broad enough to cover such theory, and, if the verdict had been based thereon, it might have been sustained.

9. APPEAL AND ERROR (§ 1178) — REVIEW — REVERSAL.

Where plaintiff was not entitled to recover on a theory on which the case was tried, but there was another theory on which a verdict for plaintiff, under the facts, could have been sustained, the judgment would be reversed and the cause remanded for a new trial after amendment of the petition to include such theory.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Nora L. Woodson against the Metropolitan Street Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

E. C. Meservey, City Counselor, for appellant Kansas City. John H. Lucas, for appellant Metropolitan St. Ry. Co. Walsh & Morrison, for respondent.

GRAVES, J.

Plaintiff, the widow of Maj. Blake L. Woodson, brings this action to recover damages for the alleged wrongful death of her husband, alleged to have been caused by the negligence of the defendants. The accident which resulted in the death of Maj. Woodson occurred on the west side of Charlotte street, between Twelfth and Thirteenth streets, and, as alleged, at a point 175 to 200 feet south of the southwest corner of Twelfth and Charlotte streets. On that side of the street practically all of the block between Twelfth and Thirteenth streets was occupied by a power house and shops belonging to the defendant railway company. It is charged: "Now comes the plaintiff, and for her cause of action against the defendants states that the defendant Metropolitan Street Railway Company is and was at all the times hereinafter mentioned a street railway company, organized and existing under and by virtue of the Constitution and laws of the state of Missouri, and operating a large number of lines of electric and street railway in Kansas City, Jackson county, Missouri, and particularly a certain line of cable railway known as the Twelfth street line in said city; that at all of the times hereinafter mentioned said defendant Metropolitan Street Railway Company had for its use in connection with said Twelfth street line a certain building or power house located at the southwest corner of Twelfth and Charlotte streets in Kansas City, Jackson county, Missouri; that defendant Kansas City is and was at all the times hereinafter mentioned a municipal corporation; that Charlotte street in said city from Twelfth street to Thirteenth street is, and was at all the times hereinafter mentioned, a public street and highway of Kansas City, Jackson county, Missouri; that all the times hereinafter mentioned plaintiff was the lawfully wedded wife of Blake L. Woodson, now deceased; that all the times hereinafter mentioned it was the duty of the defendant Kansas City to use ordinary care to keep said street and the sidewalks thereof in a reasonably safe condition for travel and free from all obstructions which would render said street not reasonably safe for use of the traveling public; that at all times it was the duty of defendant Metropolitan Street Railway Company not to render said streets and said sidewalks unsafe and dangerous by placing or permitting obstructions to exist thereon by its act; that on or about the 16th day of March, 1902, the sidewalk upon the west side of Charlotte street between Twelfth street and Thirteenth street aforesaid, and immediately adjacent to the power house of defendant Metropolitan Street Railway Company was unsafe and dangerous in this: that the defendants had placed and permitted to remain thereon a large number of iron or steel rails, said iron or steel rails lying in various positions upon said sidewalk, and forming a dangerous obstruction to travel thereon; that said sidewalk was in such defective, unsafe and dangerous condition upon said day, and had been for a long period of time, to wit, for many months, so that the defendants, and each of them, had notice of said defective, unsafe, and dangerous condition on account of the obstructions aforesaid, or by the exercise of ordinary care would have known of such condition for a time reasonably sufficient to have removed said rails and remedied said defective, unsafe, and dangerous condition before the happening of the catastrophe hereinafter mentioned, but that both of said defendants carelessly and negligently failed and omitted so to do."

By admissions of the parties it appears that on the west side of Charlotte street there was a brick sidewalk 6.2 feet wide; that to the building line to this sidewalk was 4.1 feet; that from the east edge of the sidewalk to the curbing it was 5.8 feet. It was shown that there was a row of trees between the curbing and the sidewalk, and admitted that the tree near the point of accident was 2.7 feet from the curbing, and that the trees in the row were 20 feet apart. That these rails, such as were used in the construction of street railway tracks, had been there for some months, the evidence clearly shows. They were not on the brick pavement, but between the pavement and the curbing, and one witness says some were in the street. The evidence shows that there was at least one curved rail, and for the plaintiff it was made to appear that one end of this curved rail came within 5 or 6 inches of the brick pavement.

On the day of the accident, which was Sunday, and about 11 in the forenoon, the deceased was walking north on the brick portion of the sidewalk, leisurely smoking a cigar, when, according to plaintiff's theory, he started across in a northeast direction to a drug store on the opposite side of the street, where he had occasionally traded, when he stumbled and fell, the back of his head striking the sharp edge of one of these rails, which cut a gash therein back of the left ear, and from the shock of this blow he then and there within a few minutes died. Plaintiff's theory is that his foot struck this curved rail, and that as he stumbled...