*1 622 SUPREME COURT OF MISSOURI,
(cid:127) City. v. Kansas West v. c. nothing Ross, Mo. l. 354, announces contrary to the rule as to the stated classification of clearly distinguished That statutes. case is to he from the one at bar in that the statute there under considera only tion not directed what was to be but done, declared consequence that would follow its disobedience; this authorizes classification of mandatory. the statute as In the instant case the statute nowhere declares what shall its follow violation. is, It as we have shown, there clearly directory. fore Chap. [Art. I, 121, R. S. 1919.]
Finding no substantial reason for the issuance of the prayed writ of ouster for herein, same is denied. All concur; James T. G. paragraphs Blair, J., in 1 and 2 and the result; Woodson, J., absent.. Appellant. v.
IRENE BOYD KANSAS CITY, Banc, February 9, In 1922. City: INJURIES: On or
1. PERSONAL Notice to About Certain Date. city A jured notice to the accident in was in- eight the hours occurred between nine o’clock m. January 1918,” having actually hap- “on about accident January, pened compliance a said 25th substantial Hackenyos [Following Louis, statute and was sufficient. v. St. disapproving Louis, Reese 280 Mo. S. W. 315.] 216 S. W. Power. An BRIDGE: Construction: Exercise Governmental 2. placed bridge, girder in the middle a called iron authorizing bridge, the construction of the ordinance for plan adopted governmental city was not although governmental powers, pre- its exercise of plans ordinance authorized the which the Board scribed adopt circumstances, approve. Under of Public Works powers of ministerial in the exercise was constructed delegate agents, cannot the exercise of ministerial body. governmental powers a ministerial City. Dangerous Bridge: Lights: Liability 3. STREET: A No powers negligence is liable its ministerial for in the exercise of negligent making improvements streets, failure its *2 public reasonably for to maintain the condition street in a safe plans highway bridge according travel. prepared by in is to If a a constructed city, a exercise of ministerial the by in the officers ordinance, upon in manner such discretion conferred them bridge dangerous at it to travelers the or some of is lights night city thereon, the fails in its unless are maintained duty travel, keep reasonably public highway the safe for and to maintaining bridge guilty negligence opening is the of and timely lights proper a traveler to see without sufficient to-enable girder through construction, dangerous namely, iron the an the thereof; night, or if a traveler at in the exercise ordi- middle and dangerous construction, injured nary care, of result is a such lights girder being him see the to enable to there no sufficient it, city very of the must his is a few feet until automobile within damages. respond in Lights. city shift or -: -: Automobile cannot 4. No reasonably delegate duty keep safe condition to a in a its street escape liability travel, maintaining public, a for and cannot for bridge by upon of an ordinance the observance reliance headlights requiring carry to automobiles to sufficient or statute fifty objects them. of Such one' hundred and feet ahead reveal requirements impose statutory intended to a are automobiles, ordinance or upon duty and and owners drivers of the guests. passengers or their . Speed. Negligence: Contributory Excessive Where -: -: speed an automobile excess of declared a of the ordinance twenty negligence, plain- hour should be evidence of miles an speed exceed fifteen a miles tends to to tiff’s evidence show guilty plaintiff hour, con- of rule the court cannot an Besides, negligence tributory this law. case the as matter of a twenty speed ordinance, an in excess of miles it declared a while negligence, speed did not make such evidence should be hour negligence only presumptive per se, negligence evidence but jury. benefit the for Right Keeping An of .Center of Street. -: -: -:6. keep requiring automobiles to the drivers of the ordinance applies only they pass- right when are middle the street times, they right to use ing have At other vehicles. other roadway, including left side thereof. the middle or entire guest Passenger. --: or -The -—: G-uest -:7. chargeable with the automobile is not driver an owner speed driving negligence, an excessive either in driver’s street. middle of the OF SUPREME COURT MISSOURI, Boyd. v. Kansas by Bailway Company: Injury 8. -: -: Constructed Auto- bridge public mobile Traveler: Demurrer. Where the in the railway company, bad been constructed plans in accordance with adopted Works, city’s framed of Public Board adopt which had been authorized ordinance frame such plans, girder through iron an had been constructed middle bridge, approaching bridge only so that the end of automobile, visible, in which against guest, night time, ran and suit is brought against railway company, both and the the sus- taining railway company of a demurrer evidence of sustaining reason for offered no sufficient one since ground that, having supplied is liable on the without bridge lights, public it with sufficient invited the use for ' company travel, railway open whereas the did not no travel had connection with it after it was constructed and city. accepted by turned over to 9. nfSTBUCTION: To Find for Defendant: Cir Omission Material *3 An cumstances. instruction find to for defendant which not does given. all the should embrace circumstances not be the Where bridge lighted, properly in the not the automobile plaintiff guest against girder a in ran an which iron in the bridge, jury that, middle of the instruction which the tells fog sky if the was clear and there was no smoke about via or the duct, their the verdict must be for defendant should re be fused, sky that, since it assumes and light if clear there was fog smoke, there have sufficient no would been from lights girder moon other have the driver to see the enabled . striking and avoid it Maintaining Dangerous Bridge. -: as a Whole: a Bead 10. An undertaking plaintiff’s to cover ease must instruction be read as read, when instruction in whole; and this case so a is it will predicate plaintiff’s right found that does to a verdict bridge girder upon the construction of with a in the a middle there- negligent of, girder. said maintenance of but BBIDGE: Public Nuisance. Where the franchise 11. ordinance con- templated roadway bridge there should be but one on the sidewalk, sidewalk to it should extend from held, personal injuries traveler, has in a for court suit in the the maintenance of an iron middle negligence, being lighted necessary properly it is not without illegal . iron was an decide whether structure and per se. a nuisance Leg. $7,500: plaintiff’s Broken VEBDICT: EXCESSIVE 12. Where leg leg knee, right permanently above the was broken drawn 1921. inches, their her are shortened two knee toes turned from position, limp confined to has and she was natural she a decided hospital home weeks and at her for later walked time, $9,000, for was for crutches some and the verdict Supreme $7,500, re- court Court will not the trial reduced quire of affirmance. a further a condition reduction Harris Appeal Circuit from Court.—Hon. Jackson Judge. Robinson, Aefibmed. appel- Haywood
E. M. M. Francis Harher and lant.
(1)
refusing
erred
instruction
court
to the evidence asked
de-
nature
demurrer
plaintiff’s
City, at
conclusion of
Kansas
fendant,
statutory
give
evidence, because
did
required by
accident
notice as
the time
City,
545;. Reid v. Kansas
statute.
Laws
Hackenyos
App.
v.
986;
St.
457;
Louis,
Mo.
S. W.
(2) The
216 S.
court erred
W.
Louis,
Reese v. St.
overruling
peremptory
nature
instruction in the
defendant,
to the evidence asked
a demurrer
all the
conclusion of
at the
evidence
foregoing
(a)
ground:
because,
addition
case,
question
did not constitute either
nui-
The viaduct
Joseph,
Atchison
to travel.
sance
an obstruction
*4
App.
v.
563;
657;
188 Mo.
Railroad,
133 Mo.
Seibert
152;
196
Columbia,
U. S.
Giles Ternes,
v. Disk
v.
Wolff
Mo.
v.
185
491;
Louis,
374;
Kan.
Kaiser
Solomon
93
App.
Am.
517;
194 Mo.
Brew.
v. Tal-
Duncan,
v.
Assn.
Gaines v.
683;
v. Modern 94 Mo. Woodmen, 402. admitting improper The court evidence erred offered- exceptions objections by plaintiff over of defend- city. (7) ant Reese 216 315. Louis, v. St. S. W. giving plaintiff court erred instruction “A” ashed objections exceptions over the Kansas Wins- Ry. Long 121; v. 192 ex rel. Co., low S. v. El- W. State Pyburn City, App. 571; Mo. Kansas 166 272 v. Mo. lison, (8) permitting 150. The court erred an excessive ver- dict for stand. v. Transit Stolze 188 Co., Mo! 581. Camack, Winger, & E. Miller, P. Frcmk
Neto, Reeder, respondent. P. R. Barker and D. Groves mayor (1) The notice served on the on March language because sufficient, notice, compliance tahen constitutes substantial whole, 545; v. with the statute. Laws Hunt St. Louis, City, Morrill 179 S. W. 673; S. W. v. 762; 1049; Reid v. Kansas 192 S. W. Chica- East App. go 613; 59 Ind. Heffner v. Gilbert, v. Heffner, App. Chicago, Ann. Ill. 1088; La. Brenner *5 1921. 627 City. Boyd Kansas v. original the,
(2)
by filing
The
suit itself
institution of
petition
having
day
summons
the 8th
of March, 1918,
mayor
within
all
12,1918,
been served on
on March
(cid:127)
question,
ninety days
in
accident
the occurence
compliance
stat-
a
substantial
was
sufficient and
v. Kansas
Morrill
Louis,
673;
ute. Hunt
211 S. W.
v. St.
Mosley,
City,
v.
220;
179
Smith
759;
1915,
S. W.
Laws
(3)
Capitain
628.
Co.,
234 Mo.
Trust
117 S. W.
486;
v.
days
brought
ninety
from
Since
within
the suit was
complained of,
no notice was
occurrence
the accident
apply
necessary
not intended
because
statute was
required
brought
for notice.
the time
within
to suits
Respondent
(4)
Morrill v. Kansas
179 S.
759.W.
any
obliged
not
to serve
notice under
statute
was
question
bridge in
at
this
condition
case because the
injury
by the
time of the
nuisance
maintained
distinguished-from
Cyc.
Hughes
450;
defect.
a
28
Town of
v.
of Fond du
73 Wis.
Elrod v.
Lac,
380;
McCarty
204
v. Mountain
188
S.
Franklin,
298;
View,
W.
S.)
Updike
(N.
v.
L.
A.'
30 R.
595;
Omaha,
S. W.
appellant’s
(5)
rightfully
refused to
court
sustain
ample
there
demurrer to
evidence because
testi-
showing
mony
injury
the time of the
the record
a
or viaduct was
the middle of said
dangerous
therein and
be-
nuisance,
obstruction
ample
showing
there is
evidence
cause
also
record
negli-
contributory
guilty
respondent
gence.
(a)
girder of the viaduct
center
nuisance. K. C.
obstruction
Ordi-
par.
(a);
(d);
sec.
6,
nance
sec. 2
Ordinance
687;
Sedalia,
Mo.
Birkhimer v.
Benton v.
Louis,
App.
Joseph,
298;
489;
Burns v. St.
91 Mo.
200 S. W.
Davenport
431;
Hannibal,
77 Mo.
v.
Sedalia,
Loewer v.
A,pp.
Gallagher
Tipton,
557;
v.
133 Mo.
471;
108 Mo.
Strop,
Co.
25; Columbia Taxicab
v.
Ordinance
215
sec.
York,
N. Y.
v.
748;
Corcoran
New
S. W.
(b)
DeCourey
App. 169.
Co.,
Const.
140 Mo.
131;
v.
proper
being
driven
The automobile ivas
speed
exceeding
limit.
Ordi-
the street and
OF
COURT
MISSOURI,
*6
Berry
par.
9;
173;
nance 28759,
Automobiles,
sec.
y.
Montague Ry.
446;
v.
Sedalia,
Oo.,
Loewer
77 Mo.
193
Munger
S.
200 Mo.
935;
Railroad,
107;
W.
Statter v.
v.
App.
66
Baxter
Transit
103
Sedalia,
629;
Oo.,
iMo.
v.
Mo.
App.
Ry.
Ferry
597;
Mo. Pac.
102
544;
Becke v.
Mo.
Co.,
City Waukegon,
App.
Rappaport
v.
Ill.
109;'
205
v.
Montgomery,
Roberts,
676;
203 W.
(6)
Lawler v.
S.
217 S.
Appellant’s
point
"W.856.
not
3 is
tenable, because
against
company
railway
of action to
as the serv-
agent
ant or
that the
defendant
participant
wrongdoer
negligence
not
an active
complained
Ry.
v.
347;
McGinnis
200 Mo.
Co.,
of.
Burnes
(7)
Joseph,
App.
v.
489.
St.
91 Mo.
The action of the
refusing
city’s
complained
court
instruction
of in
appellant’s point
eminently proper,
appellant
4 was
prejudiced by
not
such action
the court.
Hunt v.
(8)
St.
SMALL, C.This judgment against had Kansas Judges majority Court the learned *7 appeal Appeals, by the the taken of to which ground remanding on the case, reversed, without city given notice and time had required by place such ‘accident as statute time said of the accident cases, that, notice stated eight p. m. nine m. and “on was between hours ” January have should stated 25, 1918, or about whereas unqualifiedly certainty absolute with the date and January being “on which was the 25, 1918,” date judges injury of said occurred. One learned court, Ewing Bland, Honorable dissented from however, the C. opinion ground on the that it of said court this Division court, conflict decision of No. 2, City, in the case of v. Kansas 219 W. and Costello S. requested he court, that the case certified this was done. against petition of Kansas Railway Company, City Terminal hut de-
the Kansas a was sustained in favor of murrer to the evidence said proceeded Company, against Terminal the trial judgment city, with the result there was a verdict and against it alone. allegations petition alleged after formal corporate
the railway company, character that defendant defendants, prior January
some time bridge viaduct on Harrison Street, built a or over had point half-way a the Belt Line at about tracks between COURT OF'MISSOURI, 19th 21st Streets said Missouri, and bridge thereby roadway became said bridge, building Harrison Street. That in said rail- said way company negligently large girder constructed a iron running lengthwise in the center north thereof, and south, upon a concrete high, base feet four six wide inches being twenty thirty- said itself inches wide and high rising two inches gradually its ends, and several higher approaching feet towards the center. That in said only from either direction, the ends said of. painted being would be that it visible; and this black, roadway, night, color of the was invisible at and was dangerous so as to be constructed to drivers of vehicles January automobiles; it was on 25,1918, long prior time thereto, nuisance; that said knew dangerous of its condition or could have known thereof long prior the exercise of reasonable care, to said 25th day anuary, negligently J 1918,but continued to main- dangerpus tain said obstruction and street and said nui- negligently place lights any warning sance, and failed bridge, provide or near obstruction any said said other means to warn drivers of vehicles of said obstruc- dangerous tion in and condition of street. said That foregoing, bridge, reason of especially all the during night .public time, was travel and awas nuisance. That day on or about the 25th of Jan- *8 uary, eight 1918, o’clock and nine o’clock m., between plaintiff passenger occupant was a of an automobile being driven north on said Harrison point Street from a bridge; bridge south of said street and were dark, ran and automobile into said iron located bridge the center of said said Harrison Street; that owing bridge being improperly to said lighted, street and negligently placed that and said was in the center by railway company, thereof ly permitted negligent- defendant and by city, remain
to there said the driver of said did not automobile discover said obstruction in time prevent to colliding the automobile from with said ob- directly struction, and said automobile did run head-on Vol. place. girder at said time and
into the of iron end said plaintiff and warning said obstruction That no had prior did the said driver to the accident did see and prior accident; that to said not know of its existence speed; being that at a lawful automobile driven said was plaintiff Her injured by follows: said collision legs hip, just both right leg, broken, below sprained, sprained; her entire and bruised and her.back body nervous shock received a severe she bruised, and system continue suffer her entire suffered will and and anguish great physical pain there- a result mental and prays judgment $25,000. she for of, which says gave in writ- notice Plaintiff that'she further George ing, H. Ed- verified Honorable affidavit, her February, day mayor city, 18th on the wards, said stating place in- the time when said where, and juries, received were' and forth,- hereinbefore set injuries, that character circumstances of such and damages defendant, she would claim therefor from the -Kansas Missouri. against plaintiff prays judgment defend-
Wherefore for $25,000 ants and costs. allegations denied the of defendant answer except petition, bridge constructed said alleged Railway Company, said Terminal company by virtue said
said constructed City, Missouri, Ordinance Nos. 2336 and of Kansas August approved, respectively, July 11,1911, 7, 3909, specifications plans file accordance with duly Public office the Board of Works said plaintiff’s alleged long approved by prior board adopted planned, injuries; that said viaduct was power governmental of said virtue constructed city. guilty herself was of contri-
Further, butory permitting negligence: 1, In the driver of said protest, automobile, without machine drive such - speed; high permitting, rate of with- knowledge protest out and with full the said thereof, *9 632 OF MISSOURI, SUPREME COURT speed of driver to rate drive such machine at excessive twenty of in to-wit, in violation hour, excess miles an city; per- 20 in Section 28759 of 3, Ordinance No. said negligent mitting in said drive machine driver to said right manner in of to the center of the instead in No. of said center, such violation of Ordinance city. reply was constructed denied that said viaduct railway company said of' under and virtue said
Ordinances in the or answer, as stated aiiy specifically either or denied that said them, and adopted planned, viaduct was or constructed as construct- governmental powers ed under and virtue of alleges said but that said constructed viaduct was in direct violation said ordinances in this: That it was provided any in said ordinances that or other placed obstruction be in should the middle of viaduct, said provide space but did that all between thereon, sidewalks, roadway, should be as obstructions; constructed free of placed but said the center of said road- way on said viaduct direct violation ordinances, said public so toas make said travel as al- road leged petition.
th,eAt trial, Ordinance No. into referred pleadings, put provided evidence, Section Railway Company, for the construction, Terminal said of said Plarrison Street viáduct “the manner of provided para- construction of the viaducts shall be graph (d) of said 6 of Section Ordinance No. 2336.” plans specifications “And of all sub- viaducts, ways approaches, required by and their whether this ordi- subject ap- nance Ordinance No. shall be proval of the Board of Public Works.” (d)
Paragraph of Section 6 of Ordinance No. “(d) 2336 was as follows: The Kansas Terminal agrees Railway expense, that it at its will, own and within time limited Section 10 hereof, construct a viaduct over they may its tracks as said tracks now exist n rearranged hereafter constructed, to, added or re-con- *10 Vol. y. City. necessary approaches, the intersection with
structed, existing (acquired Belt the Kansas from its lines Pennsylvania Company) Railway Avenue and with each plans specifica- Broadway,' such in accordance and with approved by of Public be the Board Works tions as'shall respectively. Commissioners, and Board Park stone, concrete, viaducts shall be The of said substructure superstructure shall' steel be or The concrete and steel. roadways and sidewalks concrete with steel and on concrete slabs concrete arches or on brick carried approaches via- to said with bars. The reinforced steel concrete or steel concrete, ducts be and steel, stone, shall retaining’ . . are used. . filled where walls with earth approaches con- and shall surface said viaducts grade ordinance fixed and form the hereinafter this approaches shall determined. viaducts thereto Said passengers, provided for be with sidewalks foot in width on the con- shall be sidewalks uniform necting the board street, unless otherwise ordered supervision having sides of each viaduct both thereof, except approaches, re- hereinafter and the stated, roadway. roadways and sidewalks mainder shall be shall be constructed best available and of material, approved by shall be first the board hav- material as such approaches ing supervision thereof. viaduct and Said strength permit constructed, of sufficient shall, when traffic. The construction street-car of said viaduct height approaches above feet in thereto seven clear ‘open shall as shall be termed an be such viaduct,’ so possible, allow the far as of the streets un- will, as use approaches public general pur- der the for traffic approaches poses. shall viaducts be of the full Said ’ ’ width of the street as now established. plans specifica- The evidence showed that building bridge provided for said tions for the construc- girder in tion of iron the center thereof, as same was plans specifications that such constructed, and were approved by city. of Public of said Board Works COURT OF MISSOURI, engineers by expert
There was evidence practicable that-it was bridge to construct the or feasible question enough strong the traffic which bear carry it would without have to the construction of said girder plaintiff, in-the center. an ex- On pert engineer contrary two testified'to the that the girders strong enough carry side have made been could any girder roadway the traffic without center at all. The between the sidewalk and on each side sixteen thirty-two feet, and without the would have been *11 twenty feet and inches. city
Ordinance No. 28750 of introduced parties. things Among provided, both it in Section other driving that 26, a motor vehicle “for a distance of more place question than 200 feet” at the “in of excess twenty “presumptive miles hour,” be should evidence driving speed pru of at a rate of which is not careful and ’’ dent. And that:‘ Section 9. How be Vehicles: to Driv en. be Vehicles shall driven in a careful manner and with regard safety pedestrians due for the convenience and of Every person using any and all other vehicles. vehicle any operate, street of shall Kansas portion right drive or ride such vehicle on the except right the center of the street, where the side of the impassable.” inis such as to condition Also headlights Section 25: “Motor'vehicle shall not ex thirty-six candle-power single ceed and each, street-car headlights motorcycle seventy-five shall not exceed candle-power, produce light and shall sufficient to reveal objects fifty one hundred and feet ahead and shall be ad justed ground, and directed to that on level the main shaft light projected straight of clear condensed shall be for portion and that no it ward shall be above the level of forty-two lamp nor more than inches above- the ground. adjustment . . . Such- direction and shall be permanently headlights maintained. Electric shall in ad glass dition ground have entire surface of their door etched or degree lighted ap to such that the filament shall pear indistinctly light blurred and defined that all OCTOBER TERM, y. from shall free scintillation emitted be diffused and ’’ luster. metallic that the viaduct tended to show The evidence further n with plaintiff, charged girder therein, opened completed accepted travel by the continuously Street, Harrison public until date from time used Line the Belt tracks That crosses accident. said viaduct Company, ain is built the defendant Terminal valley. to show ’s evidence tended that when night happened, January accident misty, atmosphere foggy cloudy at dark and any point if the accident there was occurred, where thereby; it also there were “moon” was obscured enough light lights give enough to near enable no see the driver of the automobile painted colliding being it, in time to avoid roadway being itself black black and also material. The defendant’s evidence to show that tended there light 21st 374 feet south Street, was an electric point at 19th Street, and another somewhat collision, point longer collision; distance north of moonlight night, fog no or clouds where the was a clear *12 girder bridge happened; the that could accident be according to Street; 21st that the seen from about U. S. nearly full moon there was a Bureau, Weather was high, the time of accident. at the how- It, four hours appeared' the observations were taken at ever, point it often the where was when clear, elevated fog, atmosphere mists was clouded and smoke the valley Belt along the Line the runs and where the where driver testified electric accident occurred. the light shown on windshield he 19th Street his so thát at girder approached. he not see the So could to effect of the extent and dark- that the evidence the place light the time and of the accident, at was ness conflicting. plaintiff’s to evidence further tended show that day evening January, the 25th accident,
on the the COURT OF MISSOURI, ' arranged plaintiff, Boyd, the her Irene sisters, given Waymer, go Mrs. Knott to to to a dance Mrs. Lodge. Meiyer accompany the Mr. Yeomans was A request Meiyer, them. L.G-. at the was to Kendrick, Meiyer five-passenger take the three women his building car to the at which was to be held north dance, of the Belt tracks, Line near 15th and Troost Street They got point Avenue. car, the south of all bridge, go they required dance, the so to travel were north. Kendrick sat at the left of the front side seat and right drove the car. The at his on sat the same Meiyer Waymer seat. and Mrs. Knott Mrs. sat in the Meiyer sitting back seat, middle. man named A' going the room-mate of Devereaux, Kendrick, who was place, right another to the on sat dance,¡ rear door with his feet inside. There water was slush and roadway begun which had to freeze on the sides of the they near the curbs, so fifteen miles an drove about hour, right of or in the center of the to avoid street, headlight glass freezing slush and water. The was ground, headlight tipped and the machine lamps edge top down so that the did not shine above the required thereof, as and there ordinance, just depression reaching some in Harrison Street, before bridge, and Kendrick, not see driver, did although until within four or feet, five his head- light light projected fifty forty or feet ahead him. girder, ap- immediately As soon as he saw Kendrick plied his brake threw out it clutch, but too stop gir- late to and the machine went into the end of the throwing occupants wrecking it and der, ground. out onto the occupants None of knew prior it, there and none saw to the collision. Plaintiff in particular knowledge that she had no testified ex- girder, thought open istence was all street; nothing driving there was indicate Kendrick was *13 proper they engaged manner; that were not simply looking Kendrick conversation, but was ahead .and driving any driving car, was 'over not, and time, ' 1921. burning; lights she were hour; fifteen his miles an they some- that she it; hit did not before see towards looked down sometimes times looked ahead and along. A number they drove the floor of the machine not plaintiff was the car testified of going for witnesses per number hour, fifteen miles whereas over fifty forty miles going it defendant testified that was per hour. Injuries: tend evidence Plaintiff’s
toAs Plaintiff’s un rendered out and was thrown to show that she ed City to the removed was the collision. conscious Hospital, She leg right Her one week. remained where she knee, her inches above broken crushed two Hospital sprained; legs from both bruised and Hospital, she con where she Eastside was taken to the up and then sat more, tinued bed for three weeks weeks. for about three on crutches afterwards walked up she walk, could her healed so she When wounds compelled right foot; her of her on the side to walk right leg up shorter than that it is inches is so drawn two her injury. turned, knee Her before the compelled going up In she is stairs toes outward. turned right drag her foot go up left foot first with her limp. present con Her decided behind. She walks city did permanant. The dition is evidence toas materially evidence of contradict the injuries. her quite intention to sue is of the accident notice except appellant city to its and is attacked
full, accident occurred, recital or statement time injuries “That the time when follows: which was as eight p. m. on nine o’clock between occurred was ” January, duly day It served about 25th petition mayor was filed 4,1918. on March against the March issued March summons 8th, and delivering- March,T918 on the 12th of 9th, and executed mayor city. copy petition of summons and evi- demurrer The defendant offered evidence case, at the all the dence close *14 MISSOURI, COURT OF City. Boyd Kansas certain, gave the court instruc- refused. The court also plaintiff, instructions for tions the and refused certain complains. city, appellant for the of defendant -which opinion. instructions will be set out in the There These plaintiff, which in favor $9,000 was verdict for of a by judgment ren- was reduced the court $7,500, against from which the amount dered city that Appeals, appealed to Kansas Court of hereinbefore stated. court, certified case to this majority judges the learned I. The of Court Appeals of inten- hold notice the accident and that the comply with tion to sue was insufficient undisputed although statutory requirement, because, that the occurred evidence was he- accident eight January nine m. on tween o’clock Notice: Sufficiency. happened the notice 25, that 1918, stated January said 1918, “on or about” hours. 25, between Hackenyos Louis, v. St. The court based its decision on Mo. 986, 123, 203 W. Reese v. 216 S. Louis, S. It that in W. decided this court. is true said last- 315, Division did so hold, mentioned case, court, Hackenyos Case, cited Court said decided Dane, authority on Reese Case. all-fours with Hackenyos reading, Case A however, careful In the two cases. difference between shows wide case'the injury notice that the occurred “on or stated September, day 11 m,” 1st a. about the about day September, injury on 2nd whereas occurred .the adopted opinion majority 1913. The Banc Court holding in Division that a C., written vari- Railey, day the time in the ance of one stated notice and between dissenting fatal. accident, true was But a the opinion date by WoodsoN, filed Borro J., concurred compliance holding that a substantial JJ., Walker, required, that a with statute all variance day compliance than of no more one substantial unnecessary attempt It the law. review the question, many very decisions on this view Vol. y. quotation con of the authorities citation
elaborate
Hackenyos
opinion
tained both in
the court
,
opinion
dissenting
Case
curious
and the
therein. Those
holdings
to see
are referred
of the various courts
opinions.
say
read
It
as we
is sufficient to
Hackenyos
in
no
the court
and had
Case
did
decide
deciding
happened
tention of
that if the accident
*15
given day,
it
stated that
the notice
be invalid if it
would
correctly.
giving
on or
the date
occurred
about
date,
adopt
argument
Indeed, the
commissioner
learned
by
ed
the
seem to
that
the
court
be
such cases
would
(203
page
Rep.)
notice would
sufficient. On
S. W.
be
Murphy
the learned
v.
commissioner said: “In
Seneca
App.
Supp.
Falls, 57
Div.
67 N. Y.
the accident
1013,
438,
April
oc
occurred on
while
10, 1897,
April
the notice said it
curred on or about
10, 1897. This
to
was held
be
compliance
substantial
with the law. In Connor v. Salt
City,
alleged
Lake
os. v. brought city prior suit filed where the suit ninety days date from the defendant within answers following S. Louis, W. accident, Hunt allegations in such cases the other cases cited. In required petition place take the notice stat the plaintiff ute. In the Costello abstract of record shows Case injured petition “on or about stated day April, the p: about the hour 21st of 8:30 ’’ day. opinion m. of said But wheth does show respect any point er made with statement point petition, time in sole of whether the made was given brought. that no at all notice before suit So regarded' authority applicable case cannot as an compelled But nevertheless this case. we are decide acquired jurisdiction by because we the certifi case, cation court, thereof this the Kansas Court Appeals, reference to decision i without whether its n dissenting conflict with the case mentioned learned member of that court.
We are therefore outset confronted *16 question proper given toas the construction to be the requiring statute notice of suit to such cities. The stat- specification ute so .it far as the relates to of time the ac- happened, only question cident the before us is as fol- against city lows: “No action any maintained shall be of this . State . . until notice shall first have been given writing mayor ninety of said the within days stating . . occurrence . . . . time injury when such [Laws received.” 545.]
In petition the case we have to decide, both mayor ninety days notice were delivered to the within of urged allegations occurrence. It is that there are petition in more are definite show tend that the accident not on occurred, or about, but on said day January, 25th might 1918. however But, be, we are satisfied that inasmuch as the received injuries her day January, the 25th notice mayor served stating in this that she re- case January, injuries day the 25th “on or about ceived such compliance with the a statute 1918,” is substantial Legislature. purpose meets the intention and purpose lay trap for honest claim- of the law was not injuries notify personal against hut to such cities, ants for injury happened,.within days ninety of the time the cities happen, city after it that the would a reason- did so have opportunity they able ascertain the were facts before lapse time. lost or obscured We there- hold, upon mayor, in served this fore, case, notice purposes for all in all material matters and substantial complied with the statute and law, intended harmony is in decision with the sufficient, our Haekenyos this in Banc decision of Court su- Case, pra, supported by not and that the Reese Case is said case Haekenyos, principles of nor construction which interpreting statute. should be followed We rule against appellant. point, therefore, this to the evidence. II. As to the demurrer appellant’s counsel agree learned cannot We governmen complained of was that the city adopted exercise plan tal powers, therefore governmental of its Exercise of cou'd not be liable for its location in Governmental Power. bridge, the center of the evenif it did render reasonably safe and not the street lights. night could without for travel at powers governmental minis to a delegate the exercise [Ruggles Works. body of Public Board terial like the 43 Mo. Clemens, 395; Louis v. 353; St. v. Bigelow 43 Mo. Collier, (Mo. App.) Cali 754; Springfield, 162 W. S. (Mo. App.) 560.] It Kiesling, 180 W. S. fornia v. *17 pre in this case ordinance the franchise
claimed girder, bridge center should have such scribed that said prescribed by the that said but it is claimed plans of Public the Board authorized the ordinance approve. subsequently adopt true, This is Works Mo.&emdash;41 291 COURT OF MISSOURI, City. Boyd v. plans but the the were authorized to -which said board city adopt governmental, were not therefore because delegate governmental powers. could not its Had plans properly already prepared in, been identified adopted by they then the franchise would ordinance, part fully have been the ordinance as if out itself, set App. [Dickey 721; therein. 109 Mo. McCor Holmes, v. App. 669.] mick v. But this was Moore, Mo. put case here. therefore, We said hold, city bridge by in powers, through in its ministerial exercise agents city. the ministerial city negligence III. That is liable for in the powers making improve- exercise of its ministerial in streets, negligent ments in its and for failure to maintain they them after are made in such manner as to Dangerous reasonably render the street in a safe condi Bridge: public travel, [Ely tion for is well settled. v. Liability Louis, 729-30; St. 181 Mo. l. c. Birkhimer v. Sedalia, (Mo. App.) 298; Gallagher 200 S. W. Tipton, App. 557; Louis, v. 133 Mo. Benton v. St. 217 Mo. seq.] l. c. et clearly Ely The law is thus stated J., Valliant, supra, page v. “But 730: after the ordinance Louis, improvement passed for the of the street has been city constructing undertakes the work recon-- structing required, the street ordinance is then city capacity, acts ministerial its and if capacity guilty negligence injury it is in of an dividual it is liable. so after the has And constructed thereby or the sidewalk and has invited public keep to use is it in it, bound condition to negligence reasonably safe use and is liable as for Cape if [Moore it fails to so. do Girardeau, 103 Mo. ” 176.] Hunter v. 470; Weston, Mo. bridge highway
If a according constructed plans prepared by ministerial officers exercise of a conferred discretion them ordi nance, manner that in such or some itof *18 643 y. City. night, having lights is to travelers at without city keep duty in its Tbounden fails thereon, neg highway guilty reasonably safe for travel, is ligence bridge opening maintaining public in such for lights [Loewer without such thereon. v. travel, Sedalia, cited.] Mo. 444; Sedalia, Birkhimer cases v. and other thfough city It is familiar law that con itself, if plan improving according in its even tractor, streets, to a ordinance, enacted makes an excavation into which ignorant traveler on the street, such falls excavation, night, owing city at failure or the contractor properly light city the street or li excavation, is exercising able if the was himself traveler due care when injured. he was [Robison v. Kansas 181 S. W. principle 1005.] The same would seem obtain where structure is above surface erected accord ing plans adopted by ministerial officers city. city properly light In either event the must dangerous place night, discharge in order to its abso duty keep lute in to exercise reasonable care to its streets reasonably safe condition travel. for duty regard
The absolute
in
this
well
opinion
stated
J.,
his
the Benton Case,
Lamm,
supra,
page
as follows:
“A
owns and con
public.
trols its streets as a trustee for the
It, therefore,
charged by
primary
stands
law with
and bounden
and
duty
keeping
them free from
nuisances, defects
parties
caused
obstructions
itself or
third
if it
(in
instance)
the latter
had actual or constructive notice
thereof
time to abate the
remove
nuisance,
the obstruc
repair
tion or
duty,
It cannot
defect.
shirk that
shift it over
or halve it
to,
others.-
with,
So much is
clear
law Missouri.
[Welsh v. St. Louis, 73 Mo. 71;
City
Carrington
Oliver v.
l.
Kansas,
83;
69 Mo.
c.
v.
St. Louis,
V. Wolff v. carriage- stepping-stone or on. In that case also relied plain step near over which curb, was on the sidewalk night, injured the ab fell himself at because of tiff light. charge in There 'no that case that sence of light stepping-stone absence ren location of the reasonably or not the sidewalk safe for dered distinguishes from a that case struc travel. The court portion of the traveled ture the middle saying, in error cites l. c. 156: “Plaintiff of Scran *20 94 of ton Pa. and Davis v. v. Callerson, App. 460. In the first an iron 22 Texas Civ. case Austin, water-plug projecting in the middle street and Obviously, above its surface was be nuisance. held . " point not in the case is plaintiff guilty negli- contributory VI. But of was gence following- not, as matter of law? We think for the (a.) evidence to the of Because the rate reasons: conflicting. plaintiff’s speed The of automobile was -to rate not fifteen evidence show the did exceed tended city speed required ordinance an and the hour, miles an twenty negli- miles an hour to be evidence of excess negli- gence twenty even miles an hour was not made gence per presumptive only negligence but evidence se, (b) jury, The re- for the ordinance consideration right quiring keep to the drivers of automobiles to simply require the center of the intended passing other the street. them to do so when vehicles the driver In other street, the absence of vehicles OF MISSOURI, COURT roadway, including right the center has a to use entire 659.] Tel. Co., thereof. v. S. W. [Jackson left side being (c) plaintiff, the owner or driver of The guest driver, but owner and could machine, negligence, guilty charged if he the driver’s Railway Company, negligence. S. [Corn W. find that under the record therefore cannot 78.] We guilty negligence contributory matter of law. giving
VII. Nor did the court err in not defendant city's gave demurrer to the evidence because it a demur- Railway rer to the evidence for defendant Terminal Corn- pany. ground The was held liable on the Demurrer public bridge it invited the to use the One Defendant. public travel, lights. without sufñcient Company open The Terminal did not for travel constructed, and had no connection with it after it was accepted by city. turned over to and Appellant complains VIII. also of the action of the objection sustaining questions court certain asked by defendant’s counsel of witness concern- Williams, speed ing traveling. rate the automobile following place extract from the record shows what took complained regard matter they of: going fast A. per or slow? I
“Q. Were don’t you about 45 to 50 fast, know what call miles hour. object question, “Me. : I as the witness R^edee qualified. not shown himself has objections ars sustained. To which “Court: ruling of the court the defendant Kansas Missouri, *21 excepted. duly then its counsel, there they going, Going were fast “Q. ITow or slow? A. nigh awfully judge, fast; I could it looked like fifty per hour. miles object question “Me. I for the reas- Reeder: stated.
ons above TERM, 1921. objections which sustained. To are The “Oouet: ruling defendant Kansas Missouri, of the court duly excepted.” there then and counsel, its ruling error court. no We see reversible objection the' but to made, answers they questions no had been answered. There was after plaintiffs out said answers, striks motion made jury. they left to stand before so that were give following instruc- IX. refused court appellant. requested by the tion you sky
"If believe from the evidence that the fog clear and that there was no or smoke Instruction: about the viaduct Omission of injured, your Material Facts. claims to have been then ver- dict in this case must be in favor of defend- City." ant Kansas refusing
We see no error this instruction. it circumstances, assumes, f ails to take in all the al- though night, that, sky the accident occurred at if the fog smoke, clear and there was no there would have light lights, been sufficient from the moon and other girder striking have seen the in time to have avoided it. law, We think this cannot be assumed as a matter of but plaintiff's under the circumstances which evidence tended show, jury question was a in this case. Appellant complains A, given X. of Instruction plaintiff. quite lengthy. Said instruction is After requiring jury existence, to find the location and di- viaduct, thereof, mensions of the and construction center, proceeds as follows: "And you defendant, if further fina from the evidence that City, negligectly opefled public said viaduct for neqliqentl'ij same, withou,t lights use and maintai~ed the signals night, to warn travelers of the Negligent existence of said of, in the center there- Maintenance. any, if and to warn travelers of the dan- ger co11idi~g girder, you with said if find there was *22 COURT OP MISSOURI, City.
Boyd Kansas t. such, dangerous girder, nighttime; that it and was you and if further find from evidence that vi- said so constructed maintained aduct, and with said any, lights signals, the center if thereof, and without you lighted if the evidence find from with- and signals, dangerous out constituted a obstruction in said using you nighttime, the same .street travelers at if further find the evidence that from defendant knew, byor the use of care reasonable and caution could have dangerous night- known, condition viaduct at said you dangerous nighttime, if find it at time, by in time was_ diligence ordinary exercise care to have any, remedied said condition said if viaduct, January you before and if 25,1918, further from find Boyd, plaintiff evidence that"Irene in this on the case, January, day eight.and 25th between nine o’clock riding m., while south on Harrison Street an automo- exercising bile, and while such care caution her prudent person safety reasonably own as a would exercise you under the same or similar if circumstances, so find attempting from evidence, travel across said you viaduct, if so find from the evidence, au- riding, tomobile in which she was one Kendrick, driven girder, any, plaintiff’s collided said center if you injuries, if find from evidence that she in- jured, negligent were the said caused maintenance- of any, girder, lights said if without aforesaid, or warn- signals, ing you lights warning if find it was without your signals, plaintiff, then verdict must be for the against Kansas defendant, Missouri.” appellant objects
The learned counsel for in- might jury language struction because the infer from open italicised that to throw the viaduct at all would be negligence lights night, and not to maintain even dur- ing night might negli- a clear with a full moon, also be gence; practically that the instruction assumes that open public negligence, viaduct throw the use be would lights signals and to maintain it without would also objection negligence. We think not well taken. y. is done he read. When this instruction must whole jury right for the to find it will he that the found predicated, construction *23 girder hut thereof, in the with the center girder, any, “negligent as afore- if maintenance of said signals, they lights” warning if found it said, without “negligent lights signals. The mainten- was without only in case the he found ance” could “as aforesaid” required, jury previously That to-wit: facts found the lights; that ab- maintained without viaduct was lights to travel- sence' of rendered said knowledge night such dan- had ers at gerous that hy due exercise of could care, or, condition knowledge prior to remedied same have thereof and had plaintiff’s injury. jury these matters of fact, found If city negligently of law ex- matter then the as a failed (cid:127) in reason- maintain its streets ercise reasonable care to ably plain- safe travel if the accident condition for thereby, tiff while she was exercise was caused required the instruction also herself, due care jury which recover. think find, entitled to We plaintiff’s proper. overrule the We instruction was point. contention on this taken case it is not
In of the neces- the view we have sary respondent’s contention further consider the illegal counsel that said center learned per, se, because nuisance structure Nuisance. contemplated there ordinance franchise roadway one said viaduct which should should be but the other. do from one sidewalk to We therefore .extend point. not determine this
XI. of the As to the amount verdict: verdict Ap- $9,000, $7,500. was for court reduced pellant’s learned counsel contends it is still excessive. injuries&emdash;that The right leg her her statement of the case shows perman- knee; broken above her it is ently inches; drawn and shortened two her knee and toes position; are from natural she has decided their turned COURT OF MISSOURI, v. Robinson. Willis hospital limp up at home laid and was time. suffered on crutches for some walked any justified do not further reduction We feel find It should, verdict. We no error the case. opinion, in our he therefore, affirmed. But inasmuch opinion question sufficiency our on the notice is in Division conflict No. decision of the court in of Reese the casu 216 S. W. Louis, Ragland, case is to Court in Banc. transferred sitting. C., concurs; Brown, C., opinion foregoing PER CURIAM:—The of Small, opinion adopted C., is of the court. All judges James T. concur; G. the result. Blair, Jin *24 Appellants, al., D. et JOHN v. LESLEY P. WILLIS et ROBINSON al. Appellants, JOHN D. et al., WILLIS v. WILLIAM A. ALLEN et al. Appellants, JOHN D. WILLIS et al., v. COLUMBUS D. et al. THOMPSON Banc, February 9, In Interpretation: Knowledge 1. CONVEYANCE: Technical Words: interpretation Draftsman. A cardinal rule is to look to the meaning, instrument itself for ascertainment of its and in the application rule, if the deed bears its face evidence of knowledge recognized lack on the draftsman of the any employed meaning therein, use and well defined words their recognized, unskillful source use and inaccurate will be and if possible given such a construction will entire instrument purpose dominant will best effect the the maker.