WARREN
v.
KANSAS CITY.
Supreme Court of Missouri, Division No. 2.
*682 David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor and T. James Conway, Asst. City Counselor, Kansas City, for appellant.
John L. Sheridan, Donald E. Raymond, Arthur C. Popham, and Sam Mandell, Kansas City, Popham Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for respondent.
BARRETT, Commissioner.
On August 17, 1949, Thomas R. Warren, Jr., then nine years of age, was riding his bicyclе on the sidewalk on South Benton Street. As he crossed over a rather rough, cracked driveway comprising the sidewalk between the properties at 3818 and 3820 South Benton the bicycle began to wobble, and about ten feet farther on one of the wheels struck a section of the concrete sidewalk that was raised an inch and a half or two inches and he was thrown into the trunk of an elm tree in the parkway. To recover damages for his resulting personal injuries his mother, as next friend, instituted this action against the adjoining property owners and Kansas City. At the close of all the evidence the trial court directed a verdict in favor of the property owners. The court submitted the city's liability in negligently maintaining a sidewalk that was not reasonably safe and the jury returned a verdict in favor of the city. The trial court sustained the plaintiff's motion for a new trial, as to the city, upon the specified ground "that the court erred in giving to the jury instructions marked `A-B and C,' and each of them," and, in so doing, the trial court expressly "overruled (on) all other grounds assigned in said motion." Upon this appeal by the city it is insisted that the instructions wеre not prejudicially erroneous and that the trial court erred in granting a new trial upon the sole specification that they were. The plaintiff insists that the instructions were erroneous and in that connection urges that the granting of a new trial is the exercise of judicial discrеtion which *683 will be upheld unless abused or clearly erroneous.
As urged, when a trial court sustains a motion for a new trial an appellate court may be more liberal in upholding the court's action than it would in reversing a judgment on the same ground, Teague v. Plaza Express Co.,
Instruction A was the defendant's instruction on the subject of contributory negligence. It hypothesized that if Tommy saw or should have seen the condition of the sidewalk and that it was dangerous to ride his bicycle over it and that in so riding over the sidewalk "he was guilty of negligence, and if you find that such negligence, if any, directly caused or directly contributed in any degree to his fall and injury, if so, then your verdict must be for the defendant Kansas City." The plaintiff urges that in employing the phrase "in any degree," the instruction is erroneous. It is urged, since Tommy was nine years of age at the time of the accident, that he was charged with exercising that degree of care for his own safety that a boy of his age, experience and capacity would exercise under similar circumstances and that instruсtion A, in omitting any reference to his age, requires him to exercise the care of an adult.
While instruction A was upon the subject of contributory negligence it did not in point of fact purport to set forth the degree of care to be exercised by Tommy. The first paragraph of the instruction told the jury that it was the city's duty to exercise ordinary care to keep its sidewalks in a reasonably safe condition for travel for those using them "who are themselves in the exercise of ordinary care for their own safety." The instruction then hypothesized the facts, which, if found by the jury, would constitute contributory negligence on Tommy's part. It is true that he was not chargeable with exercising the care of an adult, the "test of a minor's responsibility for conduct charged to have been negligent is the caution usually displayed by ordinary children of his age and capacity." Fry v. St. Louis Transit Co.,
*684 And, in cases involving the conduct of minors, it is appropriate that instructions cover the subject of the care required of minors. Donoho v. Vulcan Iron Works,
In addition, the plaintiff offered and the court gave three other instructions upon the subject of contributory negligence. Instruction 2 is as follows: "Thе court instructs the jury that the term contributory negligence or negligence as applied to plaintiff means failure to exercise such care as persons of his experience and capacity and his age at the time of his alleged fall would usually exercise undеr similar circumstances, and if you find that plaintiff at all times used such care as persons of his then age, experience and capacity would usually exercise under similar circumstances, then you cannot find that there was any contributory negligence on his part." Instruction three plainly placed upon the city the burden of proof as to contributory negligence. Instruction four again repeated the degree of care required of Tommy and told the jury that even though they believed that he "priorly knew of the condition of the sidewalk thereat and that it was cracked and broken and was in a dangerous, defective and not reasonably safe condition, if so, if the condition of said sidewalk thereat and the danger of using it was not so glaringly obvious and dangerous that no ordinary prudent person of the then age, experience and capacity of plaintiff would have attempted to pass over it thereat and use it, then you cannot find that plaintiff was contributorily negligent from the fact alone and of itself that plaintiff attempted to pass over it and use it, if so, at said time and plаce." And so in the plainest of language and as favorably to the plaintiff as it could possibly be stated, the care required of the plaintiff and contributory negligence in general were explicitly set forth and there could have been no misunderstanding on the part of the jury оn this subject. When all the instructions are considered there was no error in instruction A's omitting reference to the care required of a minor. McCarthy v. Cass Avenue & F. G. Ry. Co.,
This instruction does not, as the plaintiff asserts, direct a verdict for the defendant upon a finding that the plaintiff "was guilty of negligenсe which in any degree directly caused or directly contributed to his fall and injury." The instruction says "that such negligence, if any, directly caused or directly contributed in any degree to his fall and injury." This distinction in phraseology and in the cases of Howard v. Scarritt Estate Co.,
Instruction B told the jury that the city was not an insurer of the safety of its sidewalks or of the safety of persons using them but was only required to exercise ordinary care to keep its sidewalks in a reasonably safe condition for lawful use by those "who are themselves in the exercise of ordinary care." The instruction then told the jury that the mere fact of the plaintiff's injury at the time and place was not sufficient to prove negligence on the part of the city, and that the plaintiff must prove negligence as defined in other instructions. It is insisted by the plaintiff that this instruction was erroneous because the plaintiff was a boy and the instruction did not state the degree of care imposed upon him. What we have said in connection with instruction A disposes of this claim. It is also urged, since the instruction is cautionary and the giving of it discretionary, that the court had a right to and did exercise its discretion in granting a new trial. Again, the plaintiff does not attempt to demonstrate upon the record how or in what manner the instruction is either erroneous, harmful to the plaintiff or prejudicial. Cooper v. 804 Grand Building Corp., supra. Furthermore, while this court affirmed the order granting the plaintiff a new trial in Jones v. Kansas City, Mo.Sup.,
Instruction C is a conventional instruction upon the subject of the credibility of the witnesses and there is no objection to it except the last clаuse "and if you believe that any witness has wilfully sworn falsely to any material matter in controversy, you may consider that fact in determining the credibility of the rest of his or her testimony." It is first urged that there was no basis in fact for the giving of this instruction, and, in the second place it is urged, since the giving or refusаl of the instruction was discretionary that the court could likewise exercise its discretion and grant a new trial because of the giving of the instruction. As to the first matter, it may be that this case was one in which this clause in a credibility of witnesses' instruction was not peculiarly necessary, but thеre was a conflict in certain of the evidence as to a very important issuethe height or depth of the raised section of the sidewalk. The plaintiff's first witness, a photographer, did not measure the depth of the cracked and broken places, but he said, "The dip оn the south side of the driveway goes down between three or four inches over the normal level of the sidewalk. That is the outstanding thing there. And the break in the first block north of the sidewalk is on the east side of the walk. At the break, it's about one and one-half to two inches in depth." All of the dеfendant's witnesses testified that there was a little dip or bump in the cracked driveway and that the raised place in the sidewalk was not to exceed *686 one and one half inches at its greatest height. If such an instruction is appropriate, it is not an unwarranted comment on thе evidence. Wendling v. Bowden,
As previously indicated, as to all these instructions, there is no demonstration thаt they were either erroneous or that they had prejudicial effect in any manner or that they materially affected the merits of the plaintiff's case or any essential issue involved upon the trial. Cooper v. 804 Grand Building Corp., supra; Jarboe v. Kansas City Public Service Co., 359 Mo., loc. cit. 16, 220 S.W.2d, loc. cit. 32; Took v. Wells, supra. The plaintiff had a most favorable submission of his case and of all the essential issues about which there could be the slightest doubt. Accordingly the judgment is reversed and the cause remanded with directions to reinstate the verdict and judgment in favor of the appellant city.
WESTHUES and BOHLING, CC., concur.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.