*1 particular this negligence stand permitting this ladder degrees from sixty angle of at least floor in then its condition engaged in upon it and a man stood perpendicular, while National Cloak particular Appellant’s statement work. hardly safety is Company insurer of and Suit was not an any claim place in whole record where relevant. There is no directly an insurer. it was made either inference sup- petition negligence. was evidence to pleaded specific There port allegations proceeded instructions petition, and the theory petition. in the outlined Lee, C., judgment is affirmed. concurs. hereby foregoing opinion C., PER CURIAM:—The Barnett, adopted opinion except Trimble, as the court. All concur, J., P. absent. App City, Missouri, Powers, Respondent,
Nannie v. Kansas ellant.* May 20, Appeals. 1929. Court of *2 728, p. * Error, 3CJ, section Appeal Juris-Cyc. References: Corpus 44; 982, 2961, p. section 4CJ, n. 32; 882, section 781, p. 88; n. 807, section n. 438, 12; 1032, 326, p. n. section 17CJ, Damages, section 70; 3137, p. 1139, n. Municipal 639, 27; p. Cor- 733, n. 22CJ, Evidence, section 64; 1107, p n. 96; 1205, p. 1974, n. 92; 1066, n. section 1840, p. 43CJ, porations, section 2062, 60; p. 1308, 2059, p. n. section p. 1301, section n. 2055, section 1314, 93. n. respondent. for & Forsee Forsee for Arthur B. Brown, Jr., K. Marcy Wolfe Barker, T.
John appellant. injuries. personal for action C. This BARNETT, County Jackson Circuit Court filed petition original February filed on petition was An amended 1925. 19, August on abstract of appears nowhere petition original 1928.
9, n
record. The the 25th petition alleges amended on about day December, was on a side- 1923, plaintiff, pedestrian, aas crossing Missouri; City, walk over bridge River in Kansas the Blue negligently permitted city long prior that the thereto time this, repair the sidewalk to become out of was hole —there about wide or three sidewalk one one-half feet and two feet long negligently permitted which the to remain several ordinary weeks, and knew care that defendant exercise of could have known of the of the hole in the exercise existence ordinary repaired care sidewalk; that defendant negligently light bridge pe- failed to or sidewalk so that safely time; could use destrians the sidewalk at that the de- stepped injured. fendant into hole and was alleged day It was further February, on or about neighbor undertook to visit a and that while she was flight injured solely ascending gave way of stairs her left on *3 injury upon of by account the she received the sidewalk and that away leg giving reason her left plaintiff right fell broke her and leg, and sprained, ligaments ankle foot and and the bruised and tore thereof; right injury permanent muscles the her leg that and by injury was caused leg the to her solely left when she fell into hole the sidewalk. the general
The answer was plea contributory a denial and neg- a ligence. The returned a verdict for plaintiff the the sum A a $7500. motion for new trial filed was and overruled de- and appealed. fendant
The evidence plaintiff most favorable to was to the effect that on Christmas’Day, 1923, plain at about six o’clock in evening the crossing tiff bridge was a over the Blue River. space There was a about bridge on south three feet side of the was that constructed aas sidewalk. floor planks. The was constructed of There were no lights bridge and time, although it was dark at the light dim buildings was from vicinity. certain in the Plaintiff stepped into a hole which was about inches across and which twelve eight was about or ten feet bridge. bridge end of The a little long. was more two than feet hundred Some of witnesses bridge that a e said was in way bad condition across, all the and said others that places there wer holes various bridge. at plaintiff hole The into stepped which was caused, as one witness by said, plank the fact a missing. that the floor was Others said that it was due to the fact planks, that two each six wide, inches missing. were only There was evidence that this was the hole which big enough for step into. The evidence shows that the plaintiff was stunned scraped and the skin off of her just leg over the bone. injury shin She treated the herself with She towels. application of Liniment tbe arnica and and Sloan’s the treatment her to continue finally her doctor who told consulted to be point of continued injury she done. The same as had place of finally broke at sore, an ulcer out tender by a been treated After she had physician. which was treated injury place remained over, for healed ulcer running sore indicated One of tender. the doctors testified the bone. there had been an kidney her had bladder trouble before Plaintiff had long She had for she received a of treatment. had course at time she received apparently from this trouble recovered kidney and bladder injury, she received her her but after tes- never since been cured. trouble returned and has five she was hearing her since had trouble with tified that she had worse her hearing had become since years old, defective but that her glasses worn nineteen injury. that she had She also testified sight and had eye become worse troubled but that her had years, she her since her She also testified the time of trial; glasses years before the time changed her five leg weak her left and would since the time give way fact had fallen number of times. reason of this she ascending flight 1927 she a friend and in
In went to visit leg fall she gave caused her fall. way stairs her left right its a Pott’s fracture of bone of termina received set but in at physicians, tion at the ankle. fracture was proper physicians back push place bone into its tempting to t pushed faulty far union the bone in too so tha there has been right with the use ankle and foot. which interferes faulty opinion in his could physician testified union One *4 operation. by partly physician or an be corrected corrected Another operation know whether the correct testified that did not would a not; matter operation or that the would be serious condition plaintiff’s there because, on age, was likelihood of an account operation infection fection; if should follow it would permanent in ankle. Plaintiff stiff testified she result she injury, since her had ceased work been unable to work her wages injury. sometime before attorney plaintiff’s put witness the stand
When injury right regard plaintiff’s to the leg, in to the at testified who examination; torney injury concerning completed the the second any objection upon part of defendant. Defendant’s at without questions torney then asked a few cross-examination concern injury ing second and then said: I like please, objection; court would to make this
“If the that the regard this testimony of this witness second accident be stricken from the record the witness did not know the because this case prior subsequent to this to the former ac accident and testify cident in this case for such a remote be unable time as to knowledge. from his own two, connection There no between the has been no connection shown witness any between the two up to time, this no cause of connection has been shown wit this any ness or other.” attorney
This motion was overruled the court after which the -for the continued to concerning examine the witnesses the second injury. Thereafter, concerning much evidence was introduced injury attorney and from time to time the defendant’s would questions concerning ask the second After the motion to strike physicians testify- out was overruled and one while ing concerning injury the second attorney for defendant stated:
“I right understand all respecting leg this evidence is sub- being ject up, being question pure connected of law and sub- ject ruling.” to a later
The court said: sir, “Yes, course, it has up to be connected or it could not be . ” competent Much testimony further concerning the second was in- troduced and attorney then the for the defendant made this ob- jection :
“At point, object Your Honor, wish we to the doctor testi fying anything pertaining right to the or supposed to have followed fall, her second for the reason second fall speculative are too remote and and not up, connected no causal connection between and the claimed ”: first fall said: “Overruled, I will determine about that later on.”
Much more testimony was then, introduced and while another physician following was on stand, occurred: “Q. may You you Doctor, examine—wait minute. state to the you whether not the found to her left leg and to the sacroiliac, portion pertains spine the column, if of such nature that it could caused her to have given way fallen going steps up the going as she was up, and causing her to have that fall? Ryland: object
“Mr. I highly improper that as in form as a hypothetical question, it does not contain the facts in evidence omits other facts evidence in framing question. It is *5 vague, injuries indefinite and uncertain. The mentioned here are different period two examinations over a of time. There is noth- ing hypothetical question in the about previous woman’s physical question. “Mr. Forsee: I am asking hypothetical not question. Kyland: And, furthermore, “Mr. question province invades the jury. “The Court: As I understand, question inquiring about something I out, ruled regard is in to the sacroiliac
joint. “Mr. Forsee: No, I did aim it I do omitting at all. said joint sacroiliac and considering only portion part as spinal column.
“The Court: Overruled. “To which action ruling and of the court defendant then and there at duly excepted. (Question by read the reporter.) Omitting the sacroiliac joint, hip' it connects with Yes, bone? A. it could.” introduced in evidence a notice of the ad mayor dressed to the Kansas stated that injuries were “caused reason of the defective condition board sidewalk for passengers foot bridge, on the south side of said . ” having displaced two said boards been broken or this When attorney objected was notice offered evidence for the comply its for introduction the reason that it did with section no 8904, 1919, Revised Statutes for the reason that it was indefinite place entire to location and of the accident in that it covered an was area; that there no bridge, large the further reason mayor ever proof service that it was served on who upon the stand City. B. Cromwell put Mr. Frank Plaintiff February City on mayor was the of Kansas testified that he service; particular notice or of its he had no recollection absent; that his present was whether did know that he riot receipt acknowledgment of signed name was name sign his authorized secretary was secretary; his his so. He he did do and that presence this such notices legal every sort of day some with served almost he was stated that there deputy sheriff came that whenever kind and notice of this conference, or the office, in his busy and he serve him the door come to secretary would get inside, his could not sheriff notice; would that he upon the accept service ask if he would right iri his sign secretary the notice would say “yes,” though recol he had no custom, was his universal this presence; that Brown, notice. Mr. concerning particular done what lection attorney that he testified been the formerly who mayor’s mayor’s office; taking to the notice served not know whether the office, but he did the outer secretary was in secretary “I said: ac or not. The inner office one of mayor’s name to signed the mayor,” service for cept *6 76 copies attorney testified kept notice and the other. The did the notice into secretary not remember took that the
private mayor. room of'the gave plaintiff’s
At in the close of all of the evidence the court verdict, 1, directing struction No. which main was the instruction negli required which to find that because gence bridge, in permitting defendant the hole remain injured. and failure light bridge plaintiff The struction not refer did to the gave 3 plaintiff’s
The court also No. which is fol- instruction as : lows you you
“If find will plaintiff, in favor of the assess issues damages compensate her will reasonably such sum her for the as you injuries, any, any, sustained, if believe from the evidence she if you estimating damages such into may take consideration: if “First. and character and extent such injury, nature any. you body mind, Such pain any,
“Second. if as believe from plaintiff injury directly the evidence has suffered from such thereby. caused you physical
“Third. Such if disability, any, find from the plaintiff directly evidence has from such caused suffered thereby. you physical
“Fourth. Such if disability, any, find from plaintiff will future, evidence jury suffer reason of such in caused, thereby, provided you and directly find from the evi physical disability dence will in future suffer directly thereby; provided, however, such caused damages such aggregate shall not exceed in the the sum of fifteen dollars, thousand plaintiff. the amount sued for “By naming imply you this sum the does mean to sum, merely find sum or any state the amount for which plaintiff sues.” requested give
The defendant B, the court to instruction as follows: " jury that court instructs the all of the evidence this case injuries pertaining claimed to have been re February 1, 1927, your ceived on or about is withdrawn from con disregard sideration such evidence.” instruction. The court refused this
Opinion. is contended that cannot recover for the reason that given mayor of the city, no notice of and for Appellant itself reason claims insufficient. that section 8904, requires Revised Statutes the notice be served the mayor, whereas the evidence shows that service was secretary. had on his case of Reid v. City, App. 457, this court
held that the statute is mandatory strictly and should be construed requirement as to the given the notice must be *7 within the limit, but should be liberally construed toas the of contents the notice. In case this compliance that held court that with the statute was not shown nor police excused evidence that officers had, pursuant to ordinance, reports made written of the ac cident to city the counselor and health commissioner nine within the ty-day period, and that actual notice of part the the accident of the officers of the city dispense will not giving with the notice required by the statute. It was also held that the officers have no authority to waive the notice and that the injured that per fact the son was give not able to notice did not give excuse the failure to notice within the time limit. ¥e no disposition depart to the rule laid down in though that case. But even we had held that requirements certain strictly construed, of the statute should be the question remains, strictly they how shall be We do construed? not think that the say appellate court to that the of an meant it was duty to resort to the notice strained construction hold that given required not within the time or that not it was delivered mayor every possible the in so. What case where it to do supra, must be read City, court said in case of Reid v. the Kansas Supreme in the later Court connection with what was said the suit was 576. that case City, case of Costello v. Kansas ninety days after within and another against instituted copy with of together a summons The the date of the accident. not be city, but the defendant, upon one was served petition the delivery of a only by served, was served defendant ing the first mayor. the stat The that the court held of summons to copy the city, and upon the of the notice no manner service prescribed ute notice; that actually received show city sufficient to it is every allegation denying each and city filed an answer conclusively showed which contained petition wax petition, copy actually city read and examined which object court said that upon the other served defendant. investigate the city opportunity to give was to the statute against itself ac protect fresh and thus while conditions case were long occurrence; that actual brought after the may which be tions imparted by facts be source of the knowledge from some other insufficient; be notice would just a verbal is insufficient notice given must, within a the defendant that notified the summons Costello; petition Mary that that petition time, file answer examine; and that public city was a bound to record which the city was therefore petition, the summons referred to the since has petition. Supreme Court notified contents unduly delivery determining not been what constitutes strict of the notice to mayor. from other
Appellant has called to authorities our attention officer in which it held that notice to one states has been requirements satisfy statute not city. We are full ac delivered officer of the must be to another which those decisions. principle cord with underlies we Legislature served, officer shall be determine Legis judgment power our are without to substitute power duty we do determine what con lature. But have the delivery mayor doing so we will strained stitutes and in beyond legislative go think was manifest construction we what Legislature intent. The must have understood that city’s af large city must run his like a business man less office the intention fairs come to disaster. It could not have been Legislature cribbed, that he be so cabined and confined should *8 perform ministerial his own he could his duties in office and every own by under his direction the use of assistants. If ministerial hand, duty he own perform has must with his to be executed power city then furnish him it follows that the is without to with a secretary stenographer. appellant or a We think attaches en mayor. the tirely corporeal importance too much the of the The body to question relinquished. into the is, was If the whose control notice attorney mayor actually who had the served the notice seen visit, mayor formed him of the him purpose of his and the told desk, attorney safety his with place upon the notice could the comply request, with that was it his force the notice into or duty against The physical hand consent? notice mayor the of the his mayor possession under the and in the control whether with We he touched it his flesh or not. think there is no difference mayor expressly apparently if notice to be put the directed the hands his office. his immediate secretary the hi's It is true that might put in his have subordinate own office failed to notice un eye, equally his but it had been der true that if the notice within grasp might neglected physical to read it. We there his served upon fore hold that notice was within the v. 134 meaning Cambridge, effect statute. To this see McCabe 289; Kelley City 37 Y. S. York, Mass. v. New v. McMahon N. 79 Minnenapolis, N. W. 653. Supreme Missouri has tax bills Court of held that are valid by by statute, signed; president which, must be board of affixed the tax been bills when his name has improvements public
79 That Reber, 226 Mo. v. another at his direction. 229.] [State mayor’s valid when has an ordinance is also held that secretary his direction. signature his has been affixed thereto the court held 214 In these cases Co., Pavement Mo. v. [Porter 1.] signature affix proper directs another to that when the officer cannot signature of the officer. He was that instrument discretion, of his which call the exercise delegate those duties receipt notice under delegate ministerial acts. but he can always purely ministerial. 1919, is 8904, section Revised Statutes given required be mayor may notices Therefore, the receive all secretary office. through 8904 in his of section virtue it mere insufficient because itself was It is claimed that the notice bridge injured on the south side ly plaintiff was stated that spot particular existed. indicating what defect without further Joseph, v. upon reliance the case of Krucker St. Appellant’s main 101. App. In that case the stated that injured by upon sidewalk slipping the ice Twenty-fourth west side of street between Jackson and Vories twenty Joseph, in the of St. a distance of four hundred streets distinguished feet. The court the case from those cases where place stated in was described as between streets but the notice two something place there was else which had the effect to locate the city something enough guide investiga be afford the definite tion, such as the statement that the defect was hole in the side walk, evidence showed one between was but hole designated points, or that the cause of stump projecting walk, four inches above the stump there was but one points, pile the defect between was a of dirt. case City, of Johnston v. Kansas S. W. this court place sufficiently peti-
held the notice described the where ninety-day period tion which was filed within the that “there stated large holes deep been left number of in said street *9 plaintiff stepped directly into one of said holes in said street there- testimony by receiving injury.” in that case showed that there forty-six in Were about holes the street between Grand and avenue in Walnut street. The notice the instant case states that the hole bridge a was certain was less than one-half a block length, plaintiff in and the evidence most favorable to was to the bridge big enough effect there but one hole in the that was which was step in plaintiff the to to. While some evidence yet existed, only question more hole this than one makes the of the sufficiency question a jury. of for the the by appellant bridge claimed the defect in
It is the was not injury plaintiff’s right leg. cause of the to proximate We think Respondent relies contention is correct. this cases of 80 W. 1161 v. 181 S. Nevada, Papic Freund,
Connor 188 v. 148; Mo. of App. 439. In the and case Milan, Plummer v. in an City Milan, v. this court held that action supra, Plummer personal may condition injury plaintiff an arm, to show injury ag has been trial, of the if such arm at and gravated negligence, this is causes other than the defendant’s damages. may in In be shown in reduction of matter defense Papic Freund, supra, v. v. trial the cases Connor Nevada and jury damages could awarded on not be court instructed the injury. sug appellate In each case the account a second might damages injury the direct gested from the second be original negligence injury, but of the that caused the refused result question. expressly In each case an accident which to decide any gravity plaintiff was to cause ar injury not sufficient yet healing process broken bone which had not com rested permanent pletely But this case the had a united. leg way.” jury “give her left which caused that limb Accord testimony ing leg repaired completely her to her own left injury repair when the occurred. Because of ever second injury permanent injury she received this fell and a new her independent right leg. There was It was a new noth process healing ing which interfered with about the fall already plain If we injury which she had. should hold that damages could recover received reason of the tiff this case compelled then we would be hold that if leg through negligence defendant, thereafter, his lost completely path found himself in the healed, his when get way an unable to approaching train was out be infirmity thereby death, of his came to his his cause widow wrongful might damages for death from the recover defendant leg. negligence him caused lose his case the in whose tervening cause was efficient cause. respondent
However, support authorities cited do concerning the evidence the second was contention that ad- apparent Plaintiff was before the and it doubt missible. was no very proper to them that she much disabled. was was know disability from the much how how arose Furthermore, second. the examination of one wit- much out ness had before motion made to strike completed been completely testimony. The second before the objection party made. before It has been held that when permits opponent improper to introduce evidence without ob- jection materially it is substantial effecting error the merits if permits the court thereafter same kind of evidence over ob- jections. 298 W. Morrison, v. S. Gieske v. Redemeyer, [Henson *10 92; S. W. Smith v. Woodman of the World, 179 Mo. l. c. 133; Grocery Co. v. Smith, 74 Neely v. Chicago Great Western R. Co., 14 (2d) S. W. 972.] It is claimed that the court erred in refusing give to instruction B which would have withdrawn from the jury consideration of the all the evidence in the pertaining case plaintiff’s to injury received on February 1, 1927. Authorities are cited to the effect that when incompetent evidence is admitted the may, court under certain cir- cumstances, cure the error an instruction drawing with that evi- dence from the jury. Appellant consideration of the also cites eases to the effect that the defendant is entitled to an limiting instruction may the matters that consider in jury assessing damages, and that the defendant is entitled to an instruction withdrawing an assignment negligence from the consideration of where plaintiff allegations petition has failed to sustain allegation. opinion that We are of the that defendant directing the not to entitled to an instruction award ease was injury. any How- damages plaintiff on account of her second withdrawing all an instruction was not entitled to ever, defendant of the consideration second the evidence such plaintiff's questions physicians framing hypothetical jury. take into considera- compelled to during trial, been attorney had, already We have plaintiff. the health of condition of tion personal injury in a suit held that have out that courts pointed showing had had that evidence competent introduce is it instruction to refuse error It is never a second jury. consideration from the competent evidence withdraws evi- effect of that limiting the instruction give an proper to It is requested. instruction No such dence. plain- evidence admitting erred court that the It claimed second reason for the fall second tiff’s required section given to already held’ that 1919. We Statutes 9804, Revised injury and it on account recover entitled was not were based instructions plaintiff’s appellant is admitted was made objection as this such injury. No upon the entirely give necessary to it was hold that if we should Even trial. re- as a direct injury occurs a second when new notice evi- not follow yet does negligence, it original sult incompetent. injury was the second dence Dr. Archie M. permitting erred contended leg such left testify Johnson fall. The answer her second caused could have nature statement. set out objection to are referred *11 expert’s is opinion It contended that for outside this asked an be- province jury, field of science and invaded therefore opinion plaintiff’s concerning it for the cause cause called any physical opinion second fall rather than for his on cause to the left condition. The state that physician did not leg only We plaintiff’s fall, that it could. did cause second determining difficulty layman great think that a have would leg likely make the or not bruise would be whether leg give way, opinions of proper and that it was to introduce the experts. objection though We treating are now damages right resulting from the in- to recover for had a true, but the ob- jury, we to be because not because believe theory. jection upon that We cannot consider ob- was framed testimony assigned in jection the trial to this was not court. $7500 is excessive. It It is claimed that the verdict disability pain compensation too much as for all of the which the escape But we plaintiff has suffered. cannot the conclusion jury plaintiff compensation for all of her awarded the disabilities injuries not confine themselves to those which she received did negligence. defendant’s must a direct result of have damages plaintiff’s injury right leg. awarded because of to her objections untimely is true that the defendant made so few and such concerning right to the evidence that we objections would not reverse the case because belated were over- thought ruled, incompetent. However, even if we the evidence was objections unscientifically interposed, they no matter how those were plainly trial at least indicated court ‘that the defendant was contending was not liable for the to the right leg. appellant right hold has
We therefore in this complain impossible the verdict is excessive. It is this case by requiring to cure remittitur us the error as a condition to damage affirmance. We do not know how much awarded right leg. attempt reason of the If we should by requiring cure the error a remittitur we would fix have damages for which the defendant is liable the first instance. We power to do this. no judgment is reversed and the cause Lee, C., remanded. con- curs. opinion PER foregoing by Barnettt, C., CURIAM:—The
hereby opinion adopted concur, except as the of this court. All J., P. Trimble, absent.