Young v. Kansas City Public Service Co., s. 21776

• Decision Date: 08 December 1952
• Docket Number: 21777,Nos. 21776,s. 21776
• Parties: YOUNG v. KANSAS CITY PUBLIC SERVICE CO. et al.
• Court: Missouri Court of Appeals

Page 113

255 S.W.2d 113

YOUNG v. KANSAS CITY PUBLIC SERVICE CO. et al.

Nos. 21776, 21777.

Kansas City Court of Appeals, Missouri.

Dec. 8, 1952.

Charles L. Carr, R. Carter Trucker, John Murphy, William H. Wilson and J. Gordon Siddens, Kansas City, for appellant Kansas City Public Serv. Co.

David M. Proctor, John J. Cosgrove and T. James Conway, all of Kansas City, for appellant Kansas City.

Lyman Field; Rogers, Field & Gentry, Kansas City, for respondent.

CAVE, Judge.

This is an appeal from a judgment for the plaintiff in the sum of $5,000 against both defendants for personal injuries received when she stepped into a hole in the street while alighting from a street car. Both defendants appealed and filed separate briefs.

We shall refer to defendant, Kansas City Public Service Company, as the Service Company; and to defendant, Kansas City, a municipal corporation, as the City.

The petition charged the City negligently failed to repair the hole after it knew, or should have known, of its dangerous condition; and that the Service Company negligently stopped its street car for the discharge of passengers at a place not reasonably safe. The respective answers denied the allegations of negligence and pleaded that plaintiff was guilty of contributory negligence.

The evidence relative to the cause of plaintiff's injuries is to the effect that she was a passenger on one of the Service Company's street cars on the way to work and had to transfer to another street car at 43rd and Main streets; that as she alighted from the street car she stepped into a hole on the street and broke her leg; that at the time it was dark and she was holding onto the street car rod as she alighted; that she looked where she was stepping but, because it was dark, she did not see the hole until after she had fallen; she described the hole as being about 'eight to ten inches round and it went down sort of a cone, the best I can describe it,' and was 'I imagine three or four inches' deep. Concerning whether it was light or dark at the time of the accident, plaintiff said it was 'dark.' Other of her witnesses said: 'It was dark, foggy like'; 'It was more dark than it was light'; 'It wasn't completely dark either one, * * * just break of day.' All witnesses agreed that the street car lights were on.

Concerning the size of the hole, plaintiff's witness Mihlic testified on direct examination that it was 'the size of a pie plate, * * * 1 inch deep and 6 inches in diameter.' On cross-examination he stated it was 1 1/2 inches deep, something like that * * * about 1 1/2 inches deep, * * *.' On direct examination Mr. McCastle, who was waiting to board the street car, testified: '* * * the hole looked like it was deep * * * about four or five inches wide, * * *.' On cross-examination he said it was 'three to four inches deep. * * * it looked like there had been a sledge hammer hit and it scooted back towards the track, * * *.' Mr. Calvin, who was operating another street car coming from the opposite direction and waiting for the car from which plaintiff alighted, testified that the 'hole in the pavement there at the place where she (plaintiff) got off the street car that day was the size of your head, about 2 inches deep.'

Defendants' evidence was that there was no hole at the place where plaintiff alighted. The Service Company's operator testified, 'I stopped at the regular car stop. * * * I didn't observe any hole. The street was--had imperfection in it as most of the streets have, but no hole. * * * I said if there was a hole there I didn't see it.'

The City makes but one assignment of error, which is, that the court erred in giving plaintiff's instruction No. 1 'for the reason that said instruction failed to hypothesize facts necessary to establish negligence of Kansas City.' The Service Company's assignment 1(a), in effect, charges the same error. Defendants argue that plaintiff's witness Mihlic described the hole as being from 1 to 1 1/2 inches deep and 6 inches in diameter, and that such a hole is so trivial that the City would not be negligent in permitting it to remain, and the Service Company would not be negligent in stopping its car at that place for the discharge of passengers and, therefore, the instruction should have described a hole of dimensions for which the defendants would be liable and which required the jury to find that there was such a hole in the street. It is also contended that defendants' evidence was that there was no hole in the street, thus conflicting with the plaintiff's evidence and, therefore, the instruction should have defined the dimensions of the hole for which defendants would be liable. In support of this contention they cite: Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366; Knight v. Richey, Mo.Sup., 250 S.W.2d 972; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; West v. Thompson, Mo.App., 151 S.W.2d 129, 133; Lundahl v. Kansas City, Mo.App., 209 S.W. 564; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487.

Because of other criticisms of the instruction, we copy it in full.

'You are instructed by the court that it was the duty of the defendant, Kansas City Public Service Company, under the law to exercise the highest degree of care to stop the street car in question at a reasonably safe place at or near 43rd and Main Streets for the plaintiff as its passenger to alight therefrom.

'You are further instructed by the court that it was the duty of the defendant, Kansas City, under the law, to exercise ordinary care to maintain the street in question at the place in question in a reasonable safe condition for travel by the public.

'You are therefore instructed if you find and believe from the evidence that on December 6, 1948, there was, at or near the usual stopping place (if any) for eastbound Swope Park cars at 43rd and Main Streets, a hole, if any, in the street, and that said hole, if any, was so situated that there was danger of persons who might alight from street cars stopping at said place stepping into the same and being injured thereby, and if you further find that the defendants, Kansas City Public Service Company and Kansas City, by the exercise of ordinary care, should have known that said hole was at said place, and that there was a danger of persons being injured by stepping into the same, and if you further find that the defendant, Kansas City, by the exercise of ordinary care, should have known said facts and conditions (if you so find them), in time by the exercise of ordinary care to have removed the hole, if any, before the time of plaintiff's injuries, if any, but that said defendant, Kansas City, negligently, if you so find, permitted said hole to be and remain in the condition as aforesaid, if any, at said place, and if you further find that thereafter and on December 6, 1948, the plaintiff was a passenger on the Swope Park car of the defendant, Kansas City Public Service Company, and desired to transfer at 43rd and Main to another car, and that the defendant, Kansas City Public Service Company, negligently (if you so find) stopped said car at the aforesaid hole, if any, for the plaintiff to alight, and that said place was not a reasonably safe place for plaintiff to alight, and that as plaintiff alighted from said car, she stepped into the aforesaid hole and received injuries, if she did, and if you further find that plaintiff herself was at all times in the exercise of ordinary care for her own safety, then you are instructed by the court that your verdict must be in favor of the plaintiff and against both of the defendants.'

The first two paragraphs correctly define the duty of the defendants. It then requires the jury to find: That there was a hole in the street so situated that there was danger of persons alighting from a street car stepping into the same and being injured thereby; that the defendants should have known thereof; that the City negligently permitted said hole to remain in such condition after knowledge thereof; that the Service Company negligently stopped its car at said place for plaintiff to alight; that said place 'was not a reasonably safe place for plaintiff to alight'; and that she stepped into said hole and was injured thereby. It did not specify the dimensions of the hole and the present question is, should it have done so?

It may be conceded that the defendants would not be liable if it could be said the hole was so slight or trivial that defendants would not reasonably anticipate that such a slight defect would likely cause injuries to persons alighting from a street car at that place. Taylor v. Kansas City, supra.

Defendants argue that plaintiff's witness Mihlic described such a place, citing Lundahl v. Kansas City, supra, and Maxwell v. Kansas City, supra. There is language in those opinions which lends support to defendants' contention. However, those cases were discussed and distinguished by the Supreme Court in Taylor v. Kansas City, supra, and by the St. Louis Court of Appeals in Butler v. City of University City, Mo.App., 167 S.W.2d 442. In the Taylor case the court held that a submissible issue was made where the evidence showed there was 'A sudden, abrupt, and rounded downward slant or slope in the surface of the sidewalk of 1 1/2 inches in 8 inches to the level manhole cover, * * *' [342 Mo. 109, 112 S.W.2d 565] together with other circumstances which the court took into consideration in determining whether the place was not reasonably safe. In the Butler care the court gave consideration to the question of the City's liability for a defect in a sidewalk where a patch had been made which had sunk below the general level of the sidewalk, causing an abrupt vertical separation at the east end of the patch and forming a depression of from three-fourths of an inch to an inch and a half, and took into consideration the fact that the defect was located at one of the busiest corners in...