105 Mo. 550 | Mo. | 1891
Action for personal injuries, in which plaintiff recovered a judgment in the Jackson circuit couit against the City of Kansas for $10,000, from which defendant appeals.
The material averments of the petition are as follows: That, on the third day of July, 1887, and long prior thereto, Campbell street, between Sixth and Eighth streets, in said city, had been open for travel and generally used by the public as a street; that, under said Campbell street, at a point about opposite to where the alley between Seventh and Eighth streets intersects said Campbell street, there was a sewer previously built, and then, and for a long time prior thereto, maintained by said defendant.
That, at a point on said Campbell street over said sewer, and near the intersection of said alley and said Campbell street, and on the west side of said Campbell street, the said defendant, in constructing said sewer, left an opening for access to said sewer, and the defendant had provided a covering or grating for said opening, which was designed and intended, if it had been suitably constructed, and of suitable dimensions and sufficiently fastened, to cover said opening, so as to permit travel of all kinds over the same, as upon any other part of said street.
The defendant, in providing said covering to said opening in said sewer, negligently failed to provide a covering of sufficient dimensions, and the cover which the said defendant provided was about one and one-fourth inches too short, and about three-fourths of an inch too narrow, to properly fill said opening. The defendant provided bearings for said cover to rest on on each side of said opening, but negligently and carelessly failed to provide bearings at the„ ends of said opening.
That, by reason of the negligence of the defendant in providing an insufficient covering for said opening,
That defendant carelessly and negligently left said opening unguarded, and negligently failed to give any signal or warning to those passing along or over said street of the opening in said sewer, and of the danger from said open sewer ; that, on or about the thirtieth day of July, 1887, plaintiff, Carrie A. Barr, was passing along said Campbell street, and, while in the exercise of ordinary care upon her part, stepped into said opening and fell into said sewer, and was greatly wounded, bruised and injured ; the petition then sets out particularly the injuries she received, alleges damage by reason thereof in the sum of $20,000, for which plain tiffs ask judgment.
The answer was a general denial and a plea of contributory negligence.
It was shown by the plaintiff, by evidence which was uncontradicted, that the construction of the covering of the man-hole, into which plaintiff fell, and its support was defective as charged in the petition, and that, by reason thereof, a hack passing over it about seven o’clock on Sunday evening, July 24, caused the covering to be displaced, and fall to the bottom of the hole ; that the hole, which was about seven feet deep, remained uncovered, with the cover lying at the bottom
Campbell street is a public traveled street, running north and south, with sidewalks on each side ; this hole was in that street, about two feet from the west sidewalk, in plain view, and within the line of an alley, that crossed it running east and west. Mrs. Barr lived in the house next to the house on the southwest corner of said street and alley, both houses fronting on the street.
It appears from the evidence, that between six and seven o’clock, on the morning of the thirtieth of July, Mrs. Barr, for the purpose of employing the service of a negro woman, who lived on the alley east of Campbell street, went out of the rear of her house into the yard, thence into the alley, thence east on the alley to the street, crossed the street, and, having gone to the woman’s house in the alley and transacted the business she had with her, was returning hastily across the street to her home, when she fell into the hole, and received the serious injuries of which she complains.
In crossing Campbell street the first time Mrs. Barr must have passed within a few feet of the open hole, and there is some evidence tending to prove that, upon another occasion, she was near enough to have seen the hole open. She testifies, however, positively that she never knew of the hole until she fell • in it. There was evidence, also, tending to show that she was running across the street when she fell, and that just before, and at the time she fell, she was looking south towards Eighth street, her attention being attracted in that direction by seeing a person whom she supposed to be her servant girl-.
The assignments of error urged here for reversal of the judgment are that the court erred in giving instructions 1 and 2, on behalf of the plaintiff, • and in refusing to give instructions, numbered 2, 3 and 8, on behalf of the defendant.
The only objection urged to this instruction is to the clause within brackets. The criticism upon this clause is that, “in this instruction the attention of the jury is directed exclusively to the question whether the city, by the exercise of ordinary care, might have discovered the defect; the further question, whether it would have had sufficient time thereafter to repair the defect, is left entirely out of consideration.” This is hardly a fair criticism of this clause of the instruction, when read in connection with its context, since negligence is therein predicated, not alone upon notice,
This instruction is not inconsistent with'the one given for the plaintiff, and together they present the law very fairly to the jury in regard to the alleged negligence of the defendant. If the city officers had actual knowledge of the displacement of the cover and failed to securely recover it within a reasonable time before the accident, they were guilty of negligence. If the hole was open and patent for such a length of time before the accident as that the city officials by the exercise of ordinary care and diligence could have discovered it, and they did not, they were guilty of negligence. Wharton on Negligence, sec. 963 ; 2 Dillon, Mun. Corp., sec. 1025 ; City of Chicago v. Major, 18 Ill. 349 ; Ronn v. City of Des Moines, 78 Iowa, 63; Bonine v. City of Richmond, 75 Mo. 437 ; Thompson on Trials, sec. 1706;
II. Instruction, numbered 2, given for the plaintiff is as follows: ‘ ‘ The plaintiff, Mrs. Barr, was only required to exercise ordinary care in passing over Campbell street; and ordinary care is such care as a person of ordinary prudence would have exercised under similar circumstances; and she had the right in crossing the street to assume that the same was in safe condition, unless she knew or had reason to suppose that it was unsafe ; and if she did not know or had no reason to suppose that the street was unsafe by reason of the hola in question, then the jury cannot find her guilty of contributory negligence alone from the fact that she was running when she fell into the hole, or that her attention was attracted to some other object so that she did not notice where she was stepping.”
The crucial question.of fact in the case was whether the plaintiff was guilty of contributory negligence, a question that could be fairly determined by the jury only in the light of all the facts and circumstances immediately preceding and attending the injury. This instruction selects out of those facts two of the most important, directly points the attention of the jury to them, and tells them that neither of these acts of the plaintiff alone is sufficient to warrant them in finding
Whether a person by running in the public streets in one direction, while looking in another, is guilty of negligence is a question of fact for the jury, that can be determined in any given case only by considering the two acts in combination with each other, and in connection with all the other attendant facts and circumstances, and it was the province of the jury to weigh and pass .upon those acts viewed in such combination and connection, and not alone, or as separate and independent facts. The court in this case, without giving any instruction advising the jury that these acts are to be so viewed and considered, practically deprived the acts themselves of much, if not all, their proper force and significance in the mind of the jury, in the absence of such
The difference between the instruction supposed and the one in hand is one of degree only, and not of principle ; it is a vicious mode of instruction, trenches upon the province of the jury to weigh all the evidence, without bias or comment from the court, and we find no other instruction given in this case curing the one under consideration.
The vice of specially calling the attention of the jury to isolated facts or otherwise giving prominence to a view of the case favorable to one side, while measurably retiring the view of the other side by ignoring it, or presenting it only in general terms, has been frequently condemned by this court. Sawyer v. Railroad, 37 Mo. 263, loc. cit.; Anderson v. Kincheloe, 30 Mo. 525; Fine v. Public Schools, 39 Mo. 67 ; Rose v. Spies, 44 Mo. 23 ; Jones v. Jones, 57 Mo. 142; Raysdon v. Trumbo, 52 Mo. 38; Chappell v. Allen, 38 Mo. 213.
III. By instruction, numbered 4, given for the plaintiff, the jury were properly instructed as to the measure of damages, and there was no error in refusing defendant’s instruction, numbered 2, in which the jury were told that in this action the plaintiffs could not recover for expenses incurred for medical treatment, or for loss of the wife’s time. The petition did not seek to charge the defendant for damages on account of
IV. The third refused instruction asked by the defendant is as follows: “If you believe from the evidence that the plaintiff knew of the displacement of the cover of the alley drop, or might have known of the same by the exercise of ordinary care and prudence, and that she ran across the street and fell into said alley drop, then your verdict must be for defendant, regardless of any injury she may have thereby received.”
If this instruction had been given it might have to some extent mitigated the vice of the second instruction given for the plaintiff, but the refusal of the court to give it precludes an inquiry into a consideration of its merit in connection with that instruction. Considered as an independent proposition this refused instruction cannot be approved, since, as applied to the facts, it would defeat a recovery upon the sole ground that the plaintiff had notice of the displacement of the cover; for there is no question that she ran across the street and fell into the hole. But mere notice of the existence of the condition of the uncovered hole would not of itself be sufficient to defeat a recovery. Buesching v. Gaslight Co., 73 Mo. 220; Russell v. Columbia, supra; City of Columbus v. Strassner, 25 N. E. Rep. (Ind.) 65; Maus v. Springfield, supra.
It may be said in this connection that while this instruction, as well as the others, refused to defendant on the question of contributory negligence, each has objectionable features, yet, if they had been given in connection with plaintiffs’ instruction, numbered 2, that question would have been much more fairly presented to the jury than id was.
As this case will have to be reversed and remanded for new trial for the error of the court in giving plaintiff’s second instruction without proper limitations or qualifications, it will be unnecessary to notice the last point of counsel for defendant, that the damages are excessive; that may, or may not, become a subject of future inquiry after a new trial in which defendant’s plea of contributory negligence shall have been properly presented to, and passed upon by, a jury.
The judgment is reversed, and the cause remanded for new trial.