Myers v. City of Kansas

108 Mo. 480

• Court: Supreme Court of Missouri
• Decided: October 15, 1891
• Status: Published

Opinions

Thomas, J.

This is an action by plaintiff to recover damages for injuries received by him in consequence of falling into an excavation permitted by the city to be dug at the intersection of Grand avenue and Fifteenth street, by the Grand Avenue Railway Company. This excavation was some fifty feet long, extended the width of the sidewalk, about fifteen feet, and. was eight or nine feet deep. It was in front of an engine-house on the west side of Grand avenue, which there runs north and south, and the railway company had placed in it its sheaves and other machinery with which to run its cables.

A general ordinance of the city, then in force, provided that every person, who, under permission of the superintendent of buildings, makes excavations under or adjoining streets, shall cause the same to be inclosed with good, substantial and sufficient barriers, not less than three feet high and shall also place a red light at each end thereof, in such position as to shed its light upon such excavation and shall keep such lights burning from sunset until sunrise.

By an ordinance approved February 1, 1886, the defendant city granted to the Grand Avenue Cable Railway Company the right to construct its line, and to make the said excavation. This ordinance required said company to comply with the ordinances of the city in reference to street excavations, and to hold defendant harmless from damages caused by the negligence of said company in the construction of its road.

The evidence on the part of the plaintiff tended to prove that plaintiff lived, at the time of his injury, on a farm twenty-three miles from Kansas City; he had formerly lived in that city and was familiar with the streets at and near the intersection of Grand avenue and Fifteenth street; he went to the city about the twenty-first day of July, 1887, to transact some business ; while there he traded for a cow which he did not desire to drive home during the day on account of the heat and he intended to wait till the moon rose, which was late in the night before starting ; during the evening he was engaged in buying some picks and shovels; about ten o’ clock he crossed Grand avenue from the east to the west side for the purpose of going to a store to buy a drill; it had been raining and was very dark at that time; he did not know the said excavation had been made; it was not lighted and as he crossed the street he walked into it without meeting any obstruction whatever, and without seeing it, until he fell; he was precipitated upon some machinery in the excavation, and the femur of his left leg was fractured. He hallooed for help, but he thinks it was two hours before anyone came to his relief. He was finally rescued, and taken to the city hospital.

The evidence on the part of the defendant tended to prove that the excavation was properly guarded by barriers and lighted as required by its ordinance the night plaintiff was injured; that plaintiff nad peon drinking and that he could not have fallen into the excavation without crawling under or climbing over the barriers.

The jury returned a verdict finding the issues for the plaintiff and assessing his damages at the sum of $10,000. The circuit court required plaintiff to remit $5,000 of this verdict which he did, and judgment was entered for him for $5,000, and this case is here on defendant’s appeal, having reached the court in banc upon a disagreement of the judges of division number 1.

I. The first contention is that the court erred in refusing to nonsuit plaintiff upon the pleadings and evidence. We do not think this point well taken. The argument is that while it may be conceded that there was enough evidence of the lack of barriers and lights at the moment plaintiff fell into the excavation, to take the case to the jury, yet the evidence was overwhelming and conclusive that the barrier was up and the lights there during the same night before the accident occurred, and that the court ought to have declared as a matter of law that the city was not guilty of negligence in failing to replace a barrier that had been thrown down, it having no knowledge that it was down, and not having the requisite time by the exercise of ordinary care to discover that it was down. • This contention, supported by this argument, is based on the whole evidence, that introduced by defendant as well as that introduced by plaintiff, but defendant did not renew its request to nonsuit plaintiff at the close of its case.

There is but little doubt that plaintiff’s evidence made a prima facie case of negligence on the part of defendant, in leaving the excavation unguarded, but it is claimed that the evidence on the part of defendant proved conclusively that the barrier was up that night prior to plaintiff’s injury, and, hence, if it was down at the time plaintiff fell, defendant could not be held guilty of negligence in not discovering it was down, and in not replacing it, and that the court ought to have told the jury this fact was proved, and, being proved, the plaintiff could not recover.

The court, however, even if requested, should never instruct the jury that a disputed fact was proved, unless the evidence is so conclusive and convincing that all fairminded men would decide it the same way.

A careful perusal of the evidence in this case convinces us that it is a fairly debatable question whether the particular barrier at the point' of the accident was up that night at all, prior to the time plaintiff fell, and it was, therefore, properly left to the jury to determine.

II. The defendant’s answer contained a plea of contributory negligence on plaintiff’s part, there was evidence to support that plea, and, hence, the court should not have instructed the jury, as it did, that the plaintiff was presumed to have been in the exercise of ordinary care at the time of his injury. That presumption obtains only in the absence of evidence to the contrary. Moberly v. Railroad, 98 Mo. 183; Rapp v. Railroad, 106 Mo. 423.

III. The defendant asked the court to instruct, but the court refused to instruct, the jury that if the barriers and lights were up in the night before plaintiff fell defendant performed its duty and was not liable, although the barriers and lights were down at the time plaintiff fell, if the same were down without the fault or negligence of the defendant or the Grand Avenue Railway Company. This instriiction ought to have been given. If the barriers were up at the beginning of the night, we are clearly of the opinion that defendant should not be held liable, in the absence of evidence that it knew they had been thrown down afterwards, or that they had afterwards been down so long that it ought to have discovered that fact by the exercise of ordinary care in time to have avoided the injury.

IY: The ordinances of defendant above mentioned were properly admitted in evidence, whether objected to or not. The general ordinance requiring excavations in the streets, made under permit of the superintendent of buildings, was expressly made applicable to excavations for the street railway in question by the terms of the special ordinance authorizing its construction.

For the errors pointed out the judgment is reversed and the cause remanded for new trial.

Black, Barclay, Gantt and Maceablane, JJ., concur. Sherwood, C. J., and Brace, J., hold that the judgment ought to be reversed simply without remanding.