*1
749
paid therefor;
if
device and
and even
the contract was unilateral in
inception,
attempted
time
was bilateral at the
Mrs. Bowers
664,
repudiate it.
v. Union
552,
Trust
Mo.
[Loud
It is claimed the contract It is in the recited binding upon parties contract that it shall be thereto, repre- their assigns. sentatives, assign successors is therefore provided in contract. C. J. [5 875.] holdings Supreme court,
Under the Court this it is injunctive obvious is entitled relief. Company [Nokol Becker, 292, 300 1108; case, 318 Mo. supra.] Warren justified is such not be determining record that we would entitled amount to recover under first count the petition, and will judgment we therefore remand the cause. The is reversed and the remanded. The cause commissioner recom- Boyer, C., mends. concurs. foregoing opinion by
PER CURIAM:- The Campbell, C., opinion judgment court. The is reversed and concur, Trimble, All except the cause remanded. J.,P. absent. City Clardy, Public Service Appellant,
Lawrence v. Kansas Respondent. (2d) 370. 42 S. W. Appeals. Court June n *2 n &O’Donnell appellant. for Kimbrell Bert S. ancf Bucholz
Kelly, respond- for Barnett Ess, Watson, Gage, Groner Carr, L. Charles . ent. damages brought to recover suit CAMPBELL, C. Plaintiff timely filed Defendant judgment. injuries and
personal recovered errors account “on was sustained which new trial motion appealed. has 1.” Plaintiff instruction allega- statement plaintiff’s that the record It is disclosed pertinent adopt is, therefore we correct, and petition tions read: parts thereof run- street Walnut west and running'east and 8th street “That streets traveled and much public open, ning and south were north City Public respondent, Missouri; City, within Kansas 8th East over controlled operated and owned, Company Service system track a double Walnut street across over and and street run- sidewalk street was of 8th side on either railway; that- street awas street of Walnut side that on either and and west ning east and holes . existed south, . . there running north and sidewalk . . street; . Walnut west Eighth street depressions rails between south north and depressions extend and holes said or the north rails of track, between or eastbound of the south west- the north and rail south between the track and westbound track of or eastbound south rail of the north and the track bound from six Service City Public defendant, Kansas of the existence . . . reason deep; (8) eight inches (6) .to said street point said said street at depressions and said holes pass- and of public reasonably safe not force in full . . that there was same; . along and ing ordinance City, Missouri, said ordinance an and effect pro- it was .23 ordinance of said by section being No. 54217 and good con- constantly keep and pave company shall that the vided n rails between tracks and its between repair, dition and re- shall rail and beyond outer each inches eighteen and negli- respondent . necessary; when same pave depressions be permitted allowed gently remain in said street at said point and negligently maintained tracks with said depressions holes and existing therein when it knew byor the exercise of ordinary could care have known that by reason of the existence of said holes and depressions was not good condition repair reasonably safe for the use of the public in time to have filled up or removed said holes or de- pressions.” The answer general was a denial and a plea contributory
negligence, specific allegations together of which, with the aver- ments of the reply, will be hereafter stated. time, testified that he walked westward across Walnut street to a near the sidewalk at the southwest corner of the Eighth intersection of street and Walnut street, thence noth Eighth across street. “I started north I and went four or five *3 steps my and left foot down went in just the water hole, in a pour- ing down rain and that threw me on my knee and I made an- other step and went with this foot down into sog the and I fell then clear over on my shoulder railing hit a or something.” That the holes into which he eighteen fell were inches to two feet east of the building line. Extending westward from the the intersection defendant’s tracks
are a viaduct, the exact beginning of clearly not being shown. said, “the viaduct goes starts there in the street and out over Main ... I don’t know where the sup- viaduct was posed begin. to begin If it is to the building (holes) at line, why they begins are of . I probably east where the viaduct said it was viaduct, beginning* begins the of the but the viaduct too far into back the street.”
“Q. Now, they (holes) beginning are of the viaduct or not? A. Yes.” corroborating
There was other evidence to of the location of the into he fell.
Photographs quo of the locus in were introduced. It appears to be conceded the viaduct part was not a pedestrians, street intended the and if use of hence the holes were on the located viaduct the could not recover.
Plaintiff’s instruction is as follows: “The court jury the duty instructs that it was the of defend- the ant, Kansas City Public Company, Service to pave keep and con- stantly good in repair condition and the streets between its tracks and between the rails thereof.
“You are instructed that the on part failure the of defendant, the City Public Service pave keep constantly and good in repair condition and the streets between its and be- tracks you if and part, negligence on constitutes rails the tween depressions holes and the the from evidence find and believe 8th and intersection the within were in the
mentioned intersection of said portion streets, within and were Walnut street, and 8th across lines sidewalk extended included within the the rails the between and Walnut street the west side tracks, car Company’s street Service City Public defendant, Nansas said portion of within depressions were holes and that said then by pedestrains, travel public used much intersection defendant, Kansas duty of the you that was instructed are por- keep said ordinary care exercise Company, to Service Public repair condition good intersection said tions of or daytime either in the streets, using lawfully plaintiff, instructed further you are nighttime and in the intersection along the said passing over pedestrian as a doing he thereof, provided any part to use point, had a safety.” own for his ordinary care the exercise was in it was jury that the instruction told first paragraph good condition constantly keep pave the defendant duty of rails thereof. between tracks and street between its repair ordinary to exercise that defendant failed pleaded case is The first condition. reasonably safe maintain the care to defendant jury that effect, told instruction, paragraph error. street. This the safe condition insurer was an instruc- portion subsequent cured Whether the error City, of Munden v. case- rule tion under the announced determined, court, because need not be recently by this decided *4 you are reads, “and which the instruction concluding of clause over pedestrian passing as a plaintiff, instructed that the further any right to use point, had a along at said said intersection the Manifestly erroneous. the court told clearly thereof” was portion right pass to over pedestrian, had the the plaintiff, that a jury the located. the holes were he claimed where place the court to the' for the assume either that was not Upon the record for question intersection. That in was not the were or were holes may that court apply the the assume seeks to rule jury. Plaintiff the by pleadings argues that the the fact admitted a the existence place peti- in the holes were located the stated the answer admits vicinity only the holes in is as follows: “The The answer tion. injured to were obvious and to have been claims were plaintiff where usually pedestrians by the that was part used one side the pedestrians.” Clearly for the was furnished which by contended plaintiff. to the construction open not answer is not the trial court did so construe the answer. in Moreover,
753 in part that holes were not the he “denies reply In his pedestrians.” furnished for and which was street used by introduced connection, plaintiff insists that the In this in inter were located the holes the in behalf to the effect his and that the court there undisputed could streets, was section the case of Mid proposition and cites the fore the truth of the assume Davis, 563, 233 The 581, 288 Mo. S. W. west National Bank v. case. sought not to record in this apply be invoked does the rule to 109 356, 211 Mo. 320, v. 583.] [Davidson holes in effort to show that the Plaintiff introduced evidence an not in intersection of the streets and on the viaduct. were located the sought It cross-examination of the defendant the evident part outside that furnished to that the holes were the street show Moreover, trial pedestrians. plaintiff proceeded the for the use of question location of was upon theory court the holes the the (num- jury. an instruction the determination the He obtained 2) jury question which the to ber submitted to the as whether the “in 8th on holes were located within the sidewalk lines ques- say the west street.” he cannot side Walnut Therefore the liti- tion was not the triers fact. It familiar law gant appeal on court. is bound the trial theory the Boak, 874, [Village Many v. 158 W. cases S. so hold. The 877.] applies only jury by rule issues instruc- submitted but tions, parties also the construction which the have ¡put Gillespie, pleadings. Wills, 26; Guthrie v. 276 S. W. v. [Carlson (2d) 886, W. 891; 798, S. Flint 300 S. Sebastin, v. 805.] were theory The trial was that the not admit the answer did holes theory located the intersection must be streets. trial theory Co., 233 appeal. [Long 673, on Mo. 136 S. W. 678.]
Defendant were photographs contends that the holes show located viaduct and were not the street. That was jury quoted and not for court. of instruction clause jury plaintiff, pedestrian passing told the as a along part the said intersection as any had a to use Would not thereof. term jury understand “said point” intersection at said the court told them the holes located in the intersection? We think so. The existence of the controversy. location but it is the admitted *5 sought upon theory dangerous Plaintiff to recover intersection, upon existed in the theory condition and not adjacent thereto. motion condition existed The new trial judgment well ruled. The is affirmed. The was commissioner Boyer, G., recommends. concurs. by foregoing opinion CURIAM: Tbe PER CAMPBELL, C., judgment of the court. The opinion affirmed. All as Trimble, J., P. absent. except
concur, Telegraph J. Ritchey, Appellant, Western Union Mrs. Respondent. (2d) 628. Appeals. June Court appellant. Kelly, <&O’Donnell for Bucholz Stark, R. Hazard, Francis & Barker, Winger, Reeder, Gumbiner respondent. Derge for P. Reeder and David R. E. per damages recover CAMPBELL, action to is an C. This defendant’s a result injuries alleged been sustained sonal to have plain the close jury, and a negligence. was case tried The The favor. in defendant’s verdict
tiff’s the court directed evidence appeals. Plaintiff judgment followed. was returned and verdict there whether appeal is brought this single question here jury. to the carry case legally sufficient time corporation, is a defendant delivering transmitting receiving, engaged in business of Avenue, Baltimore an office on messages hire, and maintained City, Missouri. along the sidewalk walking she was while testified collided office and doorway boy of defendant’s ran out his building with out injured “He dashed with her. sidewalk . I was about the middle head down ... a Western he wore him ... I saw him I could not avoid but saying Union’ cap wore a ‘Western Union uniform message hand ... I saw in his front, he carried a Western envelopes.” of their was on the words ‘Western Union’ and it one theory, proceed case we In will the determination evidence showT- there was substantial record, warranted