Plaintiff sued for damages sustained in the death of her husband which she alleges was caused by the negligence of the city in failing to guard or light an unsafe place in the street into which the wheel of the wagon deceased was driving dropped, throwing him out and killing him. The answer was a general denial with a plea of contributory negligence growing out of the alleged lack of ordinary care on the part of the deceased, and in Ms driving on the left hand side of the street in violation of a city ordinance regulating travel. Prom a verdict for plaintiff defendant appeals.
Defendant’s main contention is that plaintiff is not entitled to recover.
Wyoming street runs north and south. Nineteenth street runs east and west and crosses Wyoming at right angles. Both of these streets are traversed by street car lines, and there is also heavy stockyards traffic thereon. For several months before the date in question Wyoming street, north of the intersection, was being re-paved by a contractor under contract with the •city. On the day of the deceased’s hurt and prior thereto, that part of Wyoming street occupied by the street car tracks and the portion east of said tracks 'had been repaved with brick, and traffic both nortli and south went over that part of the street. The part of the street west of the tracks had been torn up for several weeks and possibly months. The concrete base
About a quarter to six o’clock in the evening of November 30,1912, deceased, sitting on the right in the driver’s seat, drove his wagon east on 19th to the intersection and then turned north on Wyoming. His seat was fully eight feet above the ground. At that hour traffic on the street was somewhat congested. On the portion of Wyoming street east of the street car tracks (which was the right hand side of the street to deceased) there was standing a buggy and also a large barrel wagon. Deceased, to get by these, drove to his left upon the east street car track, but a street car coming from behind and close to him on that track began sounding the gong for him to get out of its way. He, therefore, went still further to his left and drove upon the west car track to avoid the wagon and buggy and to let the street car pass. When-he did so the left front wheel of his wagon dropped into tbe unfinished and lower portion of the street immediately west of the west rail throwing him headlong to the
At that time of the year darkness fell about 4:30 or five o’clock, and on this evening it was gloomy and, if not actually raining at the time, was threatening-rain. It was shown to be raining soon after. An electric- arc light was suspended over the two streets a little to the south and east of the center of the intersection. The evidence, however, is amply sufficient to show or to warrant the finding that it was not burning-on this evening.
The- case is bottomed on the alleged negligence of the city in not placing warning lights or barriers over the unfinished portion of the street so as to notify travellers of the danger and that that part of the street was withdrawn- from public use.
There is no dispute over the fact that the street was unfinished and that the depression existed west of the west rail as above detailed. The evidence was clear that the left front wheel of the wagon dropped into the depression and that deceased was thereby thrown from the wagon and killed. Neither is there conflicting evidence as to the absence of barriers and guard lights. Witnesses for both plaintiff and defendant testified there were none and others said they did not see any. No one claimed that there were any. Neither can it be claimed that there is evidence carrying an inference that warning lights were there. In fact, the issue at the trial was, not whether there were warning lights or barriers in place at the time of the accident, but whether their presence was rendered unnecessary by the arc light at the intersection. The city took the position that the arc light was sufficient to brilliantly light the situation so that it was negligence to drive onto the unfinished side of the street. We have carefully read the record and there is no
The contention of the city is that under the evidence and the physical facts in the case there was no-evidence from which the jury could lawfully find that the arc light was not sufficient to dispense with the necessity of warning lights or barriers; that if the arc-light was out on this occasion it occurred so shortly before the accident as not to give the city notice thereof in time to remedy the situation; and that the unfinished and lower surface of the street, being a broad expanse occupying the entire west side of the street, was so plain and obvious as to be patent to a traveller in the exercise of ordinary care.
The unfinished portion of the street was not fit for travel. The evidence tended to show that the arc light was not burning but was out at the time. In view of the well-known tendency, likelihood, and possibility of an arc light to suddenly fail temporarily, or go out for a time, it may be very seriously quesitoned whether the presence of an arc light eighty or ninety feet distant from a defect in a street would authorize the city to dispense with the use of warning lights, specifically calling attention to the defects, or of harriers notifying travellers that a portion of the-street was withdrawn from travel. And if the city did not have the right to rely upon the arc light to-take the place of warning lights or barriers, then the city would he liable even if the arc light was ordinarily sufficient to light the place but went out shortly before the accident affording the city no time to supply its. place. However, it is not necessary to decide this-question, since plaintiff was willing to litigate the issues upon the battleground marked out by defendant,, namely, that if the arc light, when burning, was sufficient to so light the place in question as to enable travellers in the exercise of ordinary care to see the-
Taking these things into consideration, together with the lack of specific notice, such a light would give to a defect in the street (which a warning’ light or lights would supply), and the many conditions under which it is possible for the vision afforded by the arc light to be interfered with by shadows which deepen with the intensity of the light and increase in geometrical progression with the distance from intervening objects, the deceptive appearance a street has at a distance from the light, which appearance may vary in many ways, owing to the angle at which the light falls thereon and the light-reflecting or light-absorbing quality of the surface upon which the light falls, and the point from which it is viewed by the traveller — all these and many other conditions and circumstances possible to arise in any given case, make it uncertain that
The fact that Hinshaw, one of plaintiff’s witnesses, testified on cross-examination that the arc light would show the condition the street was in, does not destroy plaintiff’s case. He did not witness the accident and knew nothing of the surrounding circumstances at the time. He was acquainted with the street, and knew it was torn up. Such a light might disclose a known situation to him but would not necessarily do so to one
Error is claimed because evidence was admitted that there were no lights or barriers on the street for a long time prior to the night of the injury. The only theory on which such evidence could be erroneous or prejudicial would be that the absence of such warnings prior to that time would be considered as evidence that they were absent on the night in question, and the fact they were absent three months before would have no tendency to prove they were absent on the night in question. But there was no evidence nor claim that they were present on the night in question. Smith’s testimony, upon which defendant relies to create an issue on this point, does not say so. It is true, that where a city authorizes a contractor to do something to the street which will render it unsafe and require warning lights, no notice of the failure of the contractor to put lights there need be proved since the primary duty is upon the city to keep its streets reasonably safe. Without deciding whether or not cases might arise making the continued or prior absence of lights or barriers an issue proper to be proved, it can certainly be said that if such evidence is admitted it is not error where the absence of the lights on the night of the injury was not disputed. There was no evidence that they were there on that night. Witnesses for both plaintiff and defendant said they were not, and defendant’s theory of the case upon which it was tried was that the arc light dispensed with any others. Instructions 16 and 18 on the part of defendant impliedly . concede they were absent. In such state of the case, there being no evidence showing the lights were there and none con
As to the admission of evidence concerning the unfinished condition of the street at other places than at the point of the accident, evidence showing that it was unfinished and unfit for travel at and from the place of injury continuously on north to the next hlock would not he inadmissible. It would he admissible as bearing-on the question as to the travel being confined to the east side of the street. In fact, it was contended by defendant that as the condition of the street was extensive and not a small unnoticeahle depression-therein, the condition was plainly observable to a man in the exercise of ordinary care. Again, it was permissible to show that no lights or harriers were at any point along the Mock where the street was unfinished because the presence of such at any point along there might serve to call attention to the condition of the street. In other words, while the street would have to he shown to he defective at the very point of injury, yet a warning light would not have to set precisely on that spot, but if there were such lights at other points adjacent thereto and on the unfinished portion so as to warn an ordinarily careful person that the street was not in condition for travel at the place of injury, the city would not he liable. So that, evidence that the west side of the street was torn up along the entire Mock was not prejudicial nor was its admission error. While the answer given by the witness Hinshaw, as to the condition of the street, was objected to on the ground that it was not confined to the place of the accident, yet plaintiff’s counsel, complying- with the objection made, immediately confined it to that place by asking, “Was that the condition down near Nineteenth street on that night?” To which the witness replied, “Yes sir.” The original question as to the condition of the west side of Wyoming street “north from Nineteenth street”
As to the witness Cottingham, the record shows he was being asked with reference to the place where and the time'when “Mr. Burton got killed down there at Nineteenth and Wyoming?” He was then asked to “state if you know anything about the street being torn up there on the west side of Wyoming street north of Nineteenth?” He replied, “Well, it was torn up for repaving from Eighteenth north past Seventeenth.” No objection was made to this answer. Plaintiff’s counsel was not asking about the street north of Eighteenth but about the part north of Nineteenth, there where Burton got killed, and the next question again directed the witness’ attention to Nineteenth. And the witness’ answer, as finally obtained, was that the street was not torn up right at Nineteenth but was north of it. Later, to a question as to “whether any lights, barriers or barricades were put out there at any time,” an objection was made first as to such things at any other time and then next as to any other-place, but none as to the street being torn up in blocks north of the block in question. The record shows that plaintiff’s coimsel was not inquiring as to blocks thus far from the scene of the trouble, and any evidence of the condition of the streets as to any block other than, the one in question came from the witness and no objection thereto was made nor request to have it stricken out. Clearly the place' inquired about was there where Mr. Burton got killed north of Nineteenth. And, as stated before, it was not error to show the condition of the street along that entire block.
It is urged that plaintiff’s instruction was erroneous in that it assumed that the depression in the
Complaint is made of the conduct of plaintiff’s •counsel in the closing argument. Defendant was repsented at the trial by several counsel. Part of them were from the city counsellor’s office and appeared in their official capacities as assistant city counsellors. But among them was counsel for a surety company on a surety bond given by the contractor to protect the ■city against liability on account of doing the work. He was there in the interest of that company and not in behalf of the city. In the argument of counsel for the •city the jury were told that, “We have no interest in fixing up testimony in this case. All we are interested in is to present the actual facts to the jury. We are disinterested public servants of Kansas City.”
In replying to this, plaintiff’s counsel said, “It is hard to tell, gentlemen of the jury, the degree of interest that men have in the defense or in the prosecution of law suits, and it ill becomes these gentlemen to say they are the disinterested public servants of Kansas City. I do not know whether they are or not. There is no evidence here that they are; whether they
The statements made by plaintiff’s counsel did not tell the jury that a surety company was interested in the defense of the case. They merely told the jury that there was no evidence in the case to show whether defendant’s counsel were disinterested public servants or not. If this was likely to cause the jury to suspect that other interests were back of the defense, it was not reversible error, because it was invited by the argument made by defendant’s counsel that “We are disinterested public servants of Kansas City.”
Other alleged misconduct in argument on the part of plaintiff’s counsel is complained of wherein he asked the jury to assess the full amount of damages allowed by the statute, and not to put the life of deceased at a discount nor to measure plaintiff’s damages solely upon the basis of the money he earned per week, but to consider that because of her husband’s death plaintiff was left to support the children the evidence showed she had.
The jury paid no heed to the request to assess the full amount allowed by the statute as shown by their verdict. [Jones v. Kansas City, etc. R. Co., 178 Mo.
The argument was not an appeal to the sympathies of the jury nor was it likely to stir up their prejudices. It merely called attention without repetition, to the elements of plaintiff’s damage which the law says the .jury may consider. The verdict was not excessive. [Barth v. Kansas City Elevated Ry. Co., 142 Mo. 535; Geissman v. Missouri-Edison Electric Co., 173 Mo. 654, l. c. 680; Lee v. Mo. Pac. Ry., 195 Mo. 400, l. c. 428-9; Darks v. Grocer Co., 146 Mo. App. 246.]
The record does not present reversible error, and the judgment cannot be disturbed. It is therefore affirmed.