126 Mo. App. 629 | Mo. Ct. App. | 1907
Action against St. Joseph, a city of the second class, to recover damages for personal injuries alleged to have been caused by the negligence of defendant in permitting an obstruction to remain in the
It is insisted that the jury should have been directed peremptorily to return a verdict in favor of defendant for the reason that the notice given by plaintiff, under the provisions of section 5724, Revised Statutes 1899, gave the 4th day of December, 1905, as the date of the injury, while the allegations of the petition and the proof show the event occurred one week later. The notice delivered to the mayor on the 14th day of December, three days after the injury, was as follows: (Formal parts omitted).
“You and each of you are notified that on Monday, the 4th day of December, 1905, while affiant, Ella Canter, was riding in a buggy drawn by one horse driven by her brother, George Saunders, on and along the east side of King Hill avenue, in the city of St. Joseph, Missouri, northward, the said horse became frightened by means of a street car approaching from the south going northward with great noise and speed. That said horse first attempted to run away, but being unable to do so, jumped to the right, causing the right wheel of said buggy to come in contact with and run against and over a large block of frozen earth and rock, causing said buggy to be so tilted as to throw this affiant, Ella Canter, with the baby in her arms, out onto the brick pavement on said street, breaking her right arm, cutting her head and face, injuring her eye and spraining her back, and hurting her internally and throughout her body. Affiant, Ella Canter, further states that said block of frozen dirt and rock was from twelve to seventeen inches thick and about three feet long and two feet wide, that several weeks prior to the time when affiant was injured said block of frozen dirt and rock slid down from the bank at the east side of said King Hill avenue onto and to the distance of 4y2 feet within the main part of said King Hill avenue and west of the stone gutter on the east side there
It will be observed that the 4th day of the month first is specified as the date of the occurrence, but in a subsequent place, that event is referred to as though stated to have occurred on the 11th. One of the attorneys for plaintiff in his testimony accounts for this apparent discrepancy in this manner: The original notice was written by him in longhand and when he inserted the date appearing first therein, he erroneously wrote “Monday, the 4th day of December, 1905.” Discovering
In Lyons v. St. Joseph, 112 Mo. App. 681, we held that “The giving of the notice in substantial compliance with the requirements of the statute is a condition precedent to the right to recover. Four points must be covered therein: The time, place and circumstances of the occurrence must be stated, together with the character of the injuries sustained. Actual knowledge of the officers of the city relative to these facts, or any of them, is without effect to dispense with the giving of the notice or with the statement therein of any essential fact.” And further, we held that it was not necessary to detail in the notice the facts elemental to a recovery with the exactness required in a petition, but such facts should be stated with sufficient accuracy and definiteness to enable the city, with the aid of such inquiries as the notice itself suggested, to investigate the precise claim asserted. What was said in the opinion in that case is -generally supported by the authorities both in this state and elsewhere, and we adopt it here so far as it is applicable to the present facts.
Obviously, the statement in the notice of an erroneous date of injury is neither a literal nor substantial compliance with the requirement of the statute. In discussing the effect to be given an error of this kind, the Supreme Court of Connecticut in Gardner v. City of New London, 28 Atl. 42, observed that “time is often an important element in the identification of a given transaction. For all practical purposes, an event which
So we think, and had the notice in question erroneously fixed the date of the event one week earlier than that on which it transpired, there would be much force in the contention that the variance was fatal to the right to maintain the action. To permit a claimant to give a wrong date would not only have a tendency to mislead the city to its detriment, but to open the door to imposition and fraud, and thus to defeat the principal purpose of the statute, and it would be entirely immaterial whether or not in the particular case, the city actually had been misled. The infirmity in the notice would consist in the fact that it failed to embody a correct statement of an essential fact and thus fell short of meeting the requirements of the statute. In the present case, the notice contains the correct date and we fail to perceive that defendant could have been misled. Manifestly, any reasonable person, with that notice before him, would have seen that one of the two 'dates given was a mere error and would have covered both in his investigation of the case. We must presume the officers of the
Complaint is made of the action of the learned trial judge in refusing to give the following instruction asked by defendant: “The court instructs the jury that if you believe from the evidence that Saunders, the driver of the vehicle, was guilty of negligence which directly contributed to the injury of plaintiff, and that plaintiff knew of Saunders’ negligence, or by the exercise of ordinary care, could have known of his negligence in time to have prevented such negligence and injury to herself as a result thereof and failed to do so, then plaintiff is guilty of contributory negligence and cannot recover in this case.” At the time of her injury, plaintiff was returning from South St. Joseph to her home in Doniphan county, Kansas. She was accompanied by her brother, a Mr. Saunders, and his little child. They' were riding in a buggy drawn by one horse and were seated on the same seat. While they were proceeding northwardly on King Hill avenue at a slow pace, the horse became frightened by a passing street car which overtook them, and shied away from it, causing the wheels of the buggy to collide with a body of frozen rock and earth which
It will be observed that defendant, in the instruction, did. not invoke the doctrine of imputed negligence. The court was not asked to declare that the negligent acts of the driver should be held to be those of plaintiff herself, but to state a rule by which plaintiff’s own conduct was to be measured. The rule invoked cannot be justly criticised and was applicable to an issue of fact presented by the evidence. If plaintiff’s negligence contributed with that of her brother and the city to produce her injury, she cannot recover. If she knew that her brother was driving in a negligent manner, she could not, in the exercise of reasonable care, passively acquiesce in such conduct, but should have insisted on the horse being driven with reasonable care. In Marsh v. Railroad, 104 Mo. App. 577, we gave our approval to this quotation from Elliott on Railroads, Vol. III, section 1174: “If a person riding in a vehicle knows that the driver is negligent, and he takes no precaution to guard against injury, he cannot recover, for in such case, the negligence is his own and not simply that of the driver. The
If it were a fact that the horse was likely to take fright at a passing street car and become unruly, plaintiff, who owned him, knew of the existence of that fault, and being seated with the driver, was in a position to warn him against driving carelessly, and- her failure under the circumstances to do this, would make her culpable, not necessarily on the theoretical ground that the driver as her servant or agent was acting under her direction, but because she failed to exercise the degree of concern for her own safety that would have been observed by an ordinarily careful and prudent person in her situation. We do not agree with plaintiff that the substance of this instruction is embodied in others given on behalf of defendant, and as it correctly defined a material issue, it should have been given.
We find no other error in the record, but for that noted, the judgment is reversed and the cause remanded.