Summary
In Fosmire v. Kansas City, Mo.Sup., 260 S.W.2d 252, the plaintiff tripped over a rail of a streetcar track and brought suit against the city for negligence. The city offered in evidence two ordinances to show that at the time of the injury it was the duty of the streetcar company to repair any defects in the tracks.
Summary of this case from Strahl v. TurnerOpinion
No. 43205.
July 13, 1953.
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY.
Morris Dubiner, Robert E. Gregg, Thomas E. Hudson, Hudson, Whitcraft Cavanaugh, Kansas City, for appellant.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, Kansas City, for respondent.
This is an action for $12,500 damages for personal injuries alleged to have been sustained by plaintiff in tripping over a rail of the streetcar track on Broadway at the intersection of Broadway and Eighth Streets in Kansas City. A jury returned a verdict for defendant, City of Kansas City, and plaintiff has appealed from the ensuing judgment.
Defendant-respondent, City of Kansas City, has moved to dismiss the appeal on the asserted ground that appellant's brief violates Supreme Court Rule 1.08. Respondent City has stated in the motion to dismiss that the assignments or allegations of error under the "Points and Authorities" in appellant's brief are nothing more than abstract statements of law; that no reference is made to the rulings of the trial court which are contended to have been erroneous; and that, in effect, there is a failure to state the reasons why it is contended the trial court erred in making the rulings. Plaintiff-appellant has indeed failed to comply with Rule 1.08 in some respects, as stated in the motion to dismiss. But in our desire to do what is possible to review cases on the merits, we have in the past overlooked many violations of the Rule 1.08. In this case we have endeavored to examine the case on the merits, and we believe there was prejudicial error in the admission of evidence; consequently, we will not dismiss the instant appeal. But it is important that compliance be made with Rule 1.08 for reasons well stated in Ambrose v. M. F. A. Cooperative Ass'n of St. Elizabeth, ___ S.W.2d ___, decided by Division Number One, July 13, 1953; and it is to be noted that this court in the Ambrose case has warned that dismissal of appeals may become necessary in order to obtain compliance with the Rule.
Plaintiff (appellant) had alleged that she, a pedestrian, while traveling on the south side of Eighth Street eastwardly across Broadway in Kansas City, "was caused to slip, trip, stumble and fall and to be seriously and permanently injured" by reason of the worn, dangerous and defective condition of the street, particularly at the west rail of the southbound streetcar track on Broadway, which rail had been negligently permitted to protrude and extend above the pavement in such a manner as to be dangerous to persons walking across the street; that City knew or, by the exercise of ordinary care, could have known of the unsafe condition in time to have repaired the street and rail and to have avoided injuring plaintiff. Defendant, by answer, denied the allegations of defendant's negligence, and stated that plaintiff was contributorily negligent "in failing to use plaintiff's eyes and senses in the selection of the course plaintiff was pursuing," and "in failing to use plaintiff's eyes and senses in the use of said course."
There was substantial evidence tending to show that, at about 4:50 o'clock in the afternoon of December 7, 1948, plaintiff had walked eastwardly from the southwest corner of the intersection into Broadway, a heavily used street at that hour. Plaintiff tripped and fell over the west rail of the southbound streetcar track and was injured. At the point where plaintiff fell, the pavement was worn down, and the west streetcar rail was very much above the surface of the street — "I would say two or three (or four) inches." Various witnesses testified of the time during which the condition had existed; one witness said, "I would say six months or more"; another said, "probably a year or a year and a half"; and a third witness said the rail had been "that way * * * at least four years." The worn condition was almost as wide as a walkway would be — "I would say from five to six feet." Plaintiff, in proceeding from the southwest corner of the intersection, had "walked in front of one car and she hesitated until another car passed her, and then she proceeded across, and that is when she fell."
The streetcar track had been used by the Kansas City Public Service Company under Franchise Ordinance No. 54217, enacted March 21, 1927, which Ordinance provided that the (then) Street Railway Company "shall pave and keep in good condition and repair the streets between the tracks and between the rails thereof and for eighteen inches beyond each outer rail, and shall repave the same when necessary." The Ordinance No. 54217 was offered into evidence by the defendant City, and was admitted over the objection of plaintiff. The defendant City also offered (and the trial court admitted over plaintiff's objection) Ordinance No. 11764 which provided for the surrender to the City by the Kansas City Public Service Company of "streetcar trackage" on designated streets including the trackage at the place where plaintiff was injured. Ordinance No. 11764 was passed May 10, 1948. The purpose of the offer, as stated by defendant's counsel, was to show that it was the primary duty of the Kansas City Public Service Company "to repair any defects adjacent to its rails prior to May 10, 1948, and that thereafter the duty shifted back to the City." Plaintiff objected to the introduction of the Ordinances on the grounds "that this would be improper, prejudicial and immaterial," and "that it is an attempt to relieve itself (City) of an obligation primary under the law by an agreement, an ordinance not binding upon this plaintiff, for the further reason that it is a delegation of power not authorized by law."
We are of the opinion the trial court erred in admitting the Ordinances Nos. 54217 and 11764 into evidence. The Ordinances were incompetent as evidence tending to show defendant City's duty, and injected a fact prejudicial to plaintiff in the trial of the issue of the breach of defendant City's duty to exercise ordinary care to maintain its streets in a reasonably safe condition for travel. Such a duty resting upon a city is a nondelegable and continuous one under the law. The Ordinances governed the relation of defendant City and the street railway company in the company's use of the street. But the fact that a street railway company has (or had) undertaken or is (or had been) bound to maintain and repair a street occupied by it does not relieve the city from liability to a person injured. Crockett v. City of Mexico, 336 Mo. 145, 77 S.W.2d 464; 63 C.J.S., Municipal Corporations, § 785, pp. 97-98. See also Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; State ex rel. Kansas City v. Shain, Mo.Sup., 177 S.W.2d 511; Nicholas v. Kansas City, Mo.App., 171 S.W.2d 744; Nimmo v. Perkinson Bros. Const. Co., Mo.Sup., 85 S.W.2d 98; McCarroll v. Kansas City, 64 Mo.App. 283. "A city owns and controls its streets as a trustee for the public. It, therefore, stands charged by the law with the primary and bounden duty of keeping them free from nuisances, defects, and obstructions caused by itself or by third parties if it (in the latter instance) had actual or constructive notice thereof in time to able the nuisance, remove the obstruction, or repair the defect. It cannot shirk that duty, or shift it over to, or halve it with, others. So much is clear law in Missouri." Benton v. City of St. Louis, 217 Mo. 687, 118 S.W. 418, 421.
In its brief, respondent City concedes that the admission of the Ordinance No. 54217 "probably was error," but argues that the jury could not have been misled, nor could plaintiff have been prejudiced inasmuch as Ordinance No. 11764 was also introduced which Ordinance recited, as stated, that trackage, including that at Broadway and Eighth, had been surrendered by the street railway company to the City in May 1948. Respondent had cited Le Grand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706 (wherein the police officer's statement as to the place of the accident had been erroneously admitted into evidence, but the evidence could not have been prejudicial because it was shown and it must have been clear to the jury that the officer was four blocks away and did not see the accident); Grace v. Union Electric Co., 239 Mo.App. 1210, 200 S.W.2d 364 (wherein the opinion of the nonexpert witness was erroneously admitted but, having a regard for the volume of undisputed evidence which explained the cause of the flood, the reviewing court was convinced no prejudice resulted); and Kunz v. Munzlinger, Mo.Sup., 242 S.W.2d 536 (wherein it was said that the admission of facts entirely immaterial to the issues and without probative force could not have constituted prejudicial error, especially when such facts were not of such a character as to inflame, and their prejudice was not otherwise made to appear). In the instant case we believe the admission of Ordinance No. 54217 into evidence erroneously supplied a basis for a conclusion by the jury that defendant City should not be found responsible for any defective condition of the street and tracks existing while the street was used by the street railway company. The Ordinance No. 11764 did not clarify or correct such effect of Ordinance No. 54217, at least not its effect as to a defective condition prior to May 10, 1948. The shown fact that the trackage was surrendered to the City only about seven months before plaintiff's injury may well have had an effect prejudicial to plaintiff in misleading the jury with regard to the City's duty prior to the surrender of the trackage by the Company, particularly with respect to the question whether the City knew or, by the exercise of ordinary care, could have known of the alleged defect at times prior to as well as after the surrender of the trackage. We think it cannot be correctly said the Ordinances were immaterial or of no probative effect in the sense that their admission into evidence was harmless unless their prejudicial effect was shown. The Ordinances were immaterial and irrelevant, but they were also incompetent in defining defendant City's duty to this plaintiff and invited a conclusion in conflict with defendant City's duty to this plaintiff under the law. In our opinion, their admission into evidence was erroneous and prejudicial.
Respondent City reminds us that counsel for the City, in his opening statement, told the jury that at the place in question "the City took back control of the street" in May 1948, and "for that reason" the street was under the control of the City and not of the Company. Respondent City also reminds us that counsel for the City did not challenge the statements of plaintiff's counsel in argument to the jury that the place in question was under the control of the City; and that the fact that the City relied upon the Company to keep "their streets in repair for a long time" did not constitute a defense under the instructions given by the court. But this argument of respondent City only makes clear that the introduction of the Ordinances made it necessary for plaintiff's counsel in his argument to urge to the jury that the street railway company's obligation under Ordinance No. 54217 in no way affected the City's duty, and constituted no defense to plaintiff's claim under the instructions given.
We cannot escape the conclusion that the introduction of the Ordinances could have had the effect apparently intended by the City. We refer to the City's announced purpose in introducing the Ordinances, that is, to show "that it was the primary duty of the Streetcar Company to repair any defects adjacent to its rails prior to May 10, 1948, and that thereafter the duty shifted back to the City." We are of the opinion the jury was justified in believing and may have believed that the obligation or duty of the City relating to the place in question existed only after the trackage was "shifted back" to the City by the Ordinance of May 10, 1948, and that defendant City should not be charged with knowledge, actual or constructive, of the defect which City may or should have had prior to that date. We bear in mind there was substantial evidence introduced tending to show that the alleged defect had existed long prior to May 1948, and the jury, believing this evidence was true, could have reasonably found that defendant City knew or, in the exercise of ordinary care, should have known of the defect; had the time thereafter to remedy the condition and avoid injury to travelers, including plaintiff, on and across the street; and so was guilty of negligence in the maintenance of the street at that place at a time long prior to (as well as after) the time the trackage was "shifted back" to the City in May 1948.
Other contentions of error of the trial court in excluding evidence proffered by plaintiff tending to show that other persons than plaintiff had been tripped on the streetcar rail at or near the place where plaintiff was injured, see Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807, and in giving defendant's instruction submitting the issue of contributory negligence, see King v. Rieth 341 Mo. 467, 108 S.W.2d 1, stating the rule that a contributory negligence instruction should submit facts pleaded as constituting plaintiff's negligence of which there was substantial evidence, may be examined by counsel and the errors, if such are apparent, may be avoided upon a retrial.
The judgment should be reversed, and the cause remanded.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
HYDE, P. J., and HOLLINGSWORTH and DALTON, JJ., concur.
CONKLING, J., dissents in separate opinion filed.
I respectfully dissent from the conclusion of the principal opinion that we should consider and should rule the merits of this appeal. I would sustain the respondent's motion to dismiss the appeal for the violation of our Rule 1.08.
My reasons therefor sufficiently appear in the principal opinion of Judge Hyde, and in my dissenting opinion, both filed in the case of Ambrose v. M. F. A. Cooperative Ass'n of St. Elizabeth, ___ S.W.2d ___.