NIXON, P. J.,
(after stating the facts). — I. It will be seen from the statement herein that at least two causes co-operated to produce the respondent’s injuries, — namely, the fright of the horse and the open gutter. If the appellant city owed a duty to the public to construct a proper sewer at this place and negligently failed to do so, then its concurrent negligence contributed to the accident and it is liable for the damages. A city is liable for an injury caused by a defective street although some accidental cause also contributed to the accident. The doctrine of concurrent negligence is firmly rooted in the jurisprudence of this State. A defendant may be liable even if the accident was not cáused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God, or with an inanimate cause, and became a part of the direct and proximate cause of the injury, although not the sole cause. [Harrison v. Kansas City Electric Light Co., 195 Mo. 606; Brennan v. City of St. Louis, 92 Mo. 482.] The same doctrine as to concurrent negligence is stated in the case of Ballentine v. Kansas City, 126 Mo. App. 130. In that case, the plaintiff hitched his horse to a thirty-pound weight in an alley and left him to deliver goods in an adjoining house. On returning, he saw only the head of the horse as it went over an unguarded declivity on the opposite side of the alley. It was held, on the evidence, that the city was guilty of negligence in not guarding the alley on the side of the declivity; and it was a question for the jury to say whether the injury was the sole result of the backing of the horse — in which event the city would not be liable for damages — or whether the injury was the result of the city’s negligence contributed to by the accidental action of the horse — in which event the city would be liable.
[400]*400The duty of the city to keep its streets, in repair at the place of the accident was contested at the trial. The rule as to opening and repairing streets by cities has often been approved- and is noAV well settled. The rule is that, whether the whole or only a portion of a street should be prepared and thrown open to public use is a governmental question; and after the street has been thrown open to the public, then the duty devolves upon the city to keep it in repair and safe for persons and vehicles to travel upon while exercising ordinary care. [Ruppenthal v. St. Louis, 190 Mo. 213.]
II. The objection is further made by the appellant that the petition states that it was an open gutter which caused the accident, and that gutters in cities are usually open and that on that account there was no negligence on the part of the appellant city. The reply is, that in the construction of city gutters there is no uniform rule as to their depth, Avidth- and location, and the question relating to their safety and danger must be determined under the facts of each particular case, and the question is to be submitted to the jury as to whether the construction in a given case was negligent or not, and that their safety or danger is a question of fact for the jury to determine under proper instructions. [Holding v. City of St. Joseph, 92 Mo. App. 143.] In the case now under consideration, the court, under proper instructions, submitted to the jury the question as to the location of the gutter and whether or not it was dangerous to persons traveling in vehicles. The finding of the jury, therefore, can not be disturbed in the appellate court.
III. Another objection of the appellant is that the petition does not state facts sufficient to constitute a cause of action; that the only allegation of negligence in plaintiff’s petition is that of failing to cover the gutter.
There was no intimation during the trial of this case [401]*401that the defendant city intended to rely upon the insufficiency of the plaintiff’s petition, — either by a demurrer to the petition or by objection to the admission of evidence, — and for the first time in the motion in arrest, the objection is specifically called to the attention of the court that the petition does not state facts sufficient to constitute a cause of action.
The petition is not open to this objection. It only states that the negligence consisted of allowing an open gutter on the north side of Broadway and on the south line of the portion of said street set apart and used for sidewalk purposes, but it gives the width and depth of such gutter, stating that it was eighteen or more inches deep and three feet or more in width, — and further, that it was dangerous to persons traveling in vehicles by reason of its open and exposed condition, and that its dangerous condition was known or could have been known by the exercise of ordinary care and prudence by the city, but that the appellant city negligently suffered the same to remain open when it was its duty to have covered the gutter so that travelers and vehicles passing from Broadway to John street and vice versa would, by the exercise of proper caution, not run into the said gutter.
We think that the allegations of the petition were sufficient to have advised the defendant of the nature of the negligence charged against it. And further, if the defendant had any question as to where or how the accident happened or as to the condition of the gutter causing the accident, and had desired further information to enable it to prepare for trial, it had the opportunity of filing a motion requiring the plaintiff to make his petition more specific by giving a detailed description of the precise condition of the gutter and the manner and nature of the negligence of the defendant which the plaintiff claimed was the cause of his injuries. We do not think that the practice is to be encouraged of allowing [402]*402a party to a suit to lie in wait for his adversary until the trial has been concluded, and, when he finds at the last moment that the decision is against him, to spring upon the court a technical objection to the petition.
IV. Another ground urged in appellant’s motion for a new trial is that the judgment was excessive.
The evidence is that the plaintiff was injured on May 5, 1908, by having two or more bones in his hand broken and also receiving some slight injuries on his body; that by reason of the injuries, he remained out of work until the 15th of September, excepting one week; that his occupation was that of a steel jigman in a mining plant, for which employment before he was injured he received from three to three and one-half dollars per day. At the time of the trial on the 22d day of October, 1908, the injury of the hand continued to such an extent that he could not close it and do his usual work on account of its stiffness. Physicians testified that they could not state how long it would be before he would recover. The expenses of medical attention and medicines showed an indebtedness- of about twenty-seven dollars incurred. Under this evidence, the judgment for seven hundred dollars can not be set aside as excessive under the rules of the Supreme Court governing such cases. It is only when the verdict is so excessively large and so out of line with reason and justice as to shock the conscience and to satisfy the unbiased mind that it was not the result of the jury’s unprejudiced deliberation that an appellate court will say that the amount of damages awarded by the jury is excessive, and the result of prejudice, passion and bias. [Longan v. Weltmer, 180 Mo.
Free access — add to your briefcase to read the full text and ask questions with AI
NIXON, P. J.,
(after stating the facts). — I. It will be seen from the statement herein that at least two causes co-operated to produce the respondent’s injuries, — namely, the fright of the horse and the open gutter. If the appellant city owed a duty to the public to construct a proper sewer at this place and negligently failed to do so, then its concurrent negligence contributed to the accident and it is liable for the damages. A city is liable for an injury caused by a defective street although some accidental cause also contributed to the accident. The doctrine of concurrent negligence is firmly rooted in the jurisprudence of this State. A defendant may be liable even if the accident was not cáused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God, or with an inanimate cause, and became a part of the direct and proximate cause of the injury, although not the sole cause. [Harrison v. Kansas City Electric Light Co., 195 Mo. 606; Brennan v. City of St. Louis, 92 Mo. 482.] The same doctrine as to concurrent negligence is stated in the case of Ballentine v. Kansas City, 126 Mo. App. 130. In that case, the plaintiff hitched his horse to a thirty-pound weight in an alley and left him to deliver goods in an adjoining house. On returning, he saw only the head of the horse as it went over an unguarded declivity on the opposite side of the alley. It was held, on the evidence, that the city was guilty of negligence in not guarding the alley on the side of the declivity; and it was a question for the jury to say whether the injury was the sole result of the backing of the horse — in which event the city would not be liable for damages — or whether the injury was the result of the city’s negligence contributed to by the accidental action of the horse — in which event the city would be liable.
[400]*400The duty of the city to keep its streets, in repair at the place of the accident was contested at the trial. The rule as to opening and repairing streets by cities has often been approved- and is noAV well settled. The rule is that, whether the whole or only a portion of a street should be prepared and thrown open to public use is a governmental question; and after the street has been thrown open to the public, then the duty devolves upon the city to keep it in repair and safe for persons and vehicles to travel upon while exercising ordinary care. [Ruppenthal v. St. Louis, 190 Mo. 213.]
II. The objection is further made by the appellant that the petition states that it was an open gutter which caused the accident, and that gutters in cities are usually open and that on that account there was no negligence on the part of the appellant city. The reply is, that in the construction of city gutters there is no uniform rule as to their depth, Avidth- and location, and the question relating to their safety and danger must be determined under the facts of each particular case, and the question is to be submitted to the jury as to whether the construction in a given case was negligent or not, and that their safety or danger is a question of fact for the jury to determine under proper instructions. [Holding v. City of St. Joseph, 92 Mo. App. 143.] In the case now under consideration, the court, under proper instructions, submitted to the jury the question as to the location of the gutter and whether or not it was dangerous to persons traveling in vehicles. The finding of the jury, therefore, can not be disturbed in the appellate court.
III. Another objection of the appellant is that the petition does not state facts sufficient to constitute a cause of action; that the only allegation of negligence in plaintiff’s petition is that of failing to cover the gutter.
There was no intimation during the trial of this case [401]*401that the defendant city intended to rely upon the insufficiency of the plaintiff’s petition, — either by a demurrer to the petition or by objection to the admission of evidence, — and for the first time in the motion in arrest, the objection is specifically called to the attention of the court that the petition does not state facts sufficient to constitute a cause of action.
The petition is not open to this objection. It only states that the negligence consisted of allowing an open gutter on the north side of Broadway and on the south line of the portion of said street set apart and used for sidewalk purposes, but it gives the width and depth of such gutter, stating that it was eighteen or more inches deep and three feet or more in width, — and further, that it was dangerous to persons traveling in vehicles by reason of its open and exposed condition, and that its dangerous condition was known or could have been known by the exercise of ordinary care and prudence by the city, but that the appellant city negligently suffered the same to remain open when it was its duty to have covered the gutter so that travelers and vehicles passing from Broadway to John street and vice versa would, by the exercise of proper caution, not run into the said gutter.
We think that the allegations of the petition were sufficient to have advised the defendant of the nature of the negligence charged against it. And further, if the defendant had any question as to where or how the accident happened or as to the condition of the gutter causing the accident, and had desired further information to enable it to prepare for trial, it had the opportunity of filing a motion requiring the plaintiff to make his petition more specific by giving a detailed description of the precise condition of the gutter and the manner and nature of the negligence of the defendant which the plaintiff claimed was the cause of his injuries. We do not think that the practice is to be encouraged of allowing [402]*402a party to a suit to lie in wait for his adversary until the trial has been concluded, and, when he finds at the last moment that the decision is against him, to spring upon the court a technical objection to the petition.
IV. Another ground urged in appellant’s motion for a new trial is that the judgment was excessive.
The evidence is that the plaintiff was injured on May 5, 1908, by having two or more bones in his hand broken and also receiving some slight injuries on his body; that by reason of the injuries, he remained out of work until the 15th of September, excepting one week; that his occupation was that of a steel jigman in a mining plant, for which employment before he was injured he received from three to three and one-half dollars per day. At the time of the trial on the 22d day of October, 1908, the injury of the hand continued to such an extent that he could not close it and do his usual work on account of its stiffness. Physicians testified that they could not state how long it would be before he would recover. The expenses of medical attention and medicines showed an indebtedness- of about twenty-seven dollars incurred. Under this evidence, the judgment for seven hundred dollars can not be set aside as excessive under the rules of the Supreme Court governing such cases. It is only when the verdict is so excessively large and so out of line with reason and justice as to shock the conscience and to satisfy the unbiased mind that it was not the result of the jury’s unprejudiced deliberation that an appellate court will say that the amount of damages awarded by the jury is excessive, and the result of prejudice, passion and bias. [Longan v. Weltmer, 180 Mo. 322.] The judgment in this case, when all the circumstances are considered, does not require, under the rule stated, that this court should set it aside as being excessive.
V. Another objection urged in the motion for a new trial is that the judge who presided at the trial, by his [403]*403questions and his threats to put the witness Aiken in jail, improperly influenced the jury in the determination of the case.
The function of a judge sitting in a case is to give the litigants an opportunity under the law to have their cases properly adjudicated. He is not a mere moderator between the contending parties. He is a sworn officer charged with great public duties. In order to establish justice, maintain truth and prevent wrong, he has a large discretion in the application of rules of practice, and his action in this respect will not be reversed by an appellate court unless it exhibits an abuse of discretion resulting in injustice. [Huffman v. Cawble, 86 Ind. 596.] A judge, in the discharge of his duties may call and examine witnesses in furtherance of justice, and may ask leading questions in order to elicit the truth. It is not only his right but his duty to do so. [State v. Nickens, 122 Mo. 607.] It is unnecessary to cite authorities to show that the judge must sit impartially between the parties litigant and not act as a partisan for either. To do otherwise would be to abdicate his high judicial functions and to take on himself those of an advocate in the case. After a patient and exhaustive examination of this case, we do not find any such misconduct of the trial judge as would warrant us in reversing the judgment.
The verdict was for the right party ¿nd the judgment is affirmed.
All concur.