Opinion
June 20, 1938.
1. MUNICIPAL CORPORATIONS: Negligence: Defective Street. In an action against a city for injuries to plaintiff caused by her stepping upon the lid of a coal hole which was defective and tilted with her, an instruction directing a recovery for plaintiff if the lid was old, warped and did not fit the rim and was so maintained by the defendant, was not erroneous.
It was not necessary to require a finding that the lid was defectively constructed since the question at issue was the condition of the lid at the time of the injury.
2. MUNICIPAL CORPORATIONS: Trials: Negligence. In an action against the city for injuries to plaintiff caused by her stepping upon the lid of a coal hole, an instruction authorizing a verdict for defendant if the jury should find that without negligence on the part of the city "as defined by these instructions" the coal hole cover had been misplaced shortly prior to the time plaintiff fell and was out of position because of such removal, was not erroneous as against defendant since it limited the jury to negligence submitted by other instructions and it was favorable to defendant, for it authorized a finding that the lid was out of position when there was no evidence to sustain such finding.
3. MUNICIPAL CORPORATIONS: Trials: Negligence. On the trial of an action for injuries caused to plaintiff by stepping upon the lid of a coal hole which was defective, an instruction asked by defendant if the jury find that the coal hole cover had been removed prior to the time plaintiff fell, and was out of position because of such removal, the verdict should be for defendant, was properly refused where there was evidence tending to show that several hours before plaintiff was injured the lid had been removed and replaced and there was no evidence tending to show that it was out of position at the time it was tilted by plaintiff.
4. MUNICIPAL CORPORATIONS: Negligence: Defective Street: Trials. On the trial of an action for injuries caused to plaintiff by stepping on the lid of a coal hole, an instruction asked by defendant that if the jury find that the coal hole cover when sitting completely in the metal ring, would not tilt when stepped upon, the verdict should be for defendant, was properly refused because it assumed that the lid would rest completely in the metal ring.
5. DAMAGES: Excessive Verdict. In an action for injuries caused to plaintiff by stepping on an insecure lid on a coal hole where plaintiff was in good health before, suffered severe injuries in the left groin, left hip, right knee and back, suffered continuous pain, and had no control of the muscles of the right leg in walking, a verdict for $10,000 was not excessive.
Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
George Kingsley and John J. Cosgrove for appellant.
(1) The court erred in giving Instruction 1 on behalf of respondent, for the reason that said instruction fails to submit the specific negligence pleaded. State ex rel. Central Coal Coke Co. v. Ellison, 195 S.W. 722, 270 Mo. 645; Eads v. Galt Tel. Co., 199 S.W. 710; Dalton v. St. Louis, etc., Co., 188 Mo. App. 529; Kuhlman v. Water Co., 307 Mo. 607; Kessler v. West Mo. Power Co., 221 Mo. App. 644; Black v. Met. St. Ry. Co., 217 Mo. 684; Feldewerth v. Wabash Railroad Co., 164 S.W. 711. (2) The court erred in refusing to give appellant's instructions C and D, and in giving instructions C and D as modified by the court, for the reason that said instructions are in conflict with plaintiff's Instruction 1. Gardner v. Met. St. Ry. Co., 122 S.W. 1068, 223 Mo. 389; Laible v. Wells, 296 S.W. 428, 317 Mo. 14; Case v. Jefferson City, etc., Co., 221 S.W. 801; Erie City, etc., v. Ferer, 263 S.W. 1008; Wilson v. Chattin, 72 S.W.2d 1001; Haton v. Ill. Cent. Railroad Co., 76 S.W.2d 127; Phillips v. Am. Car Foundry Co., 274 S.W. 963; State ex rel. v. Shain, 101 S.W.2d 1. (3) The court erred in refusing to give appellant's Instruction F, and in giving Instruction F as modified by the court, for the reason that said instruction submitted negligence of appellant in general terms, thus broadening the issue as set out in the petition, and for the further reason that said instruction conflicts with plaintiff's Instruction 1. Pevesdorf v. Light Power Co., 64 S.W.2d 939; Allen v. Transit Co., 183 Mo. 411; Jenkins v. Ins. Co., 334 Mo. 941; Birdsong v. Jones, 30 S.W.2d 1094; Edmonston v. Kansas City, 57 S.W.2d 690. (4) The verdict is excessive. Meyers v. Wells, 273 S.W. 117; Corbett v. Term. Railroad Assn., 82 S.W.2d 103; Clark v. Atchison Eastern Bridge Co., 62 S.W.2d 1083; Dorman v. East St. L. Ry. Co., 75 S.W.2d 861; Adelsberger v. Sheehy, 79 S.W.2d 114.
Price Wickersham for respondent.
(1) Plaintiff's Instruction 1 submitted the specific negligence pleaded. See "construct," Webster's International Dictionary. (2) The court did not err in refusing to give appellant's instructions C and D, because there was no evidence to support them; moreover these instructions were misleading and confusing. See "complete," Webster's International Dictionary. (3) Instructions "Modified C" and "Modified D" were more favorable to appellant than it was entitled to; they were not prejudicial to appellant. Heigold v. United Rys. Co., 271 S.W. 773; State ex rel. v. Duncan, 19 S.W.2d 465; Mo. Dig., Key 1033 (5). (4) The court did not err in refusing Instruction F because there was no evidence to support it; it was misleading and confusing; it injected defense of contributory negligence which was not pleaded. Morris v. DuPont Nemours Co., 109 S.W.2d 1230; Mo. Dig., Key 1033 (5). (5) Instruction "Modified F" was not prejudicial to appellant because it was more favorable to appellant than it was entitled to. (6) The verdict is not excessive. Breen v. United Rys. Co., 204 S.W. 521; Keehn v. Realty Co., 43 S.W.2d 416; Pandjiris v. Oliver Cadillac Co., 98 S.W.2d 977; Myers v. Wells, 273 S.W. 117; Hoff v. Wabash Ry. Co., 254 S.W. 874; Gilchrist v. Kansas City Rys. Co., 254 S.W. 161; Hubbard v. Wabash Ry. Co., 193 S.W. 579; Boyer v. Mo. Pac. Ry. Co., 293 S.W. 386.
Action for personal injuries. Judgment for $10,000 and defendant appealed.
Defendant states there was evidence tending to show the following: "On November 19, 1933, Anna Fourcade, 54 years of age, was walking south on Washington Street, on the east side, from Thirteenth to Fourteenth Streets in Kansas City, Missouri. In this sidewalk were a number of coal holes, consisting of a metal ring set in the surface of the walk and a metal lid resting on flanges inside the ring. These coal holes had been in the sidewalk for many years.
"The coal hole in question, the second one from the corner of Thirteenth and Washington Streets, was defective, in that the lid thereof was warped, would shake and rattle when stepped upon, and, when stepped upon in a particular place, would tilt.
"The evidence tended to show that this defective condition had existed for more than a year, that children had played about it and could displace the lid by kicking the same or putting weight upon it, and that on one or two occasions these children were chased away from the scene by police officers.
"On the day in question respondent stepped with her left foot on the west side of the lid as she walked south. The lid turned or tilted with her, her left leg going down into the hole, her right leg doubling up under her body. She fell on her right side, and her left leg became wedged in between the lid and the rim," thereby causing serious injury.
I. Error is assigned on the giving of an instruction directing a verdict for the plaintiff, if, at the time of the injury, the lid was old, worn and warped and did not safely fit the rim.
In substance, the petition alleged that at the time of the injury the lid was old, worn, warped and defective, and did not fit the rim, and that it was so constructed and maintained by the defendant.
Defendant argues that the instruction should have required a finding that the defendant defectively "constructed" the lid and rim. We do not think so. The question at issue was the condition of the lid and rim at the time of the injury. The allegation in the petition that defendant defectively constructed the lid and rim only went to the question of notice to the defendant of the condition of the lid and rim in time to have corrected the same before injury to plaintiff. At the trial defendant made no issue on the question of notice. Therefore, a finding of the jury on the question of the construction of the lid and rim was not necessary to a recovery by plaintiff.
II. Error also is assigned on the giving of an instruction as follows:
"The court instructs the jury that if you find and believe from the evidence that without negligence on the part of the City as defined by these instructions, the (coal hole cover in question had been misplaced shortly prior to the time plaintiff fell, and was out of position) because of such removal, if you so find, at the time plaintiff fell or stepped upon same, then your verdict should be for the defendant."
Defendant argues that the instruction gave the jury a roving commission on the issues of negligence. On the contrary, the instruction limits the jury to the negligence submitted by other instructions. Furthermore, the instruction was favorable to defendant, for it authorized a finding that the lid was "out of position" when there was no evidence to sustain such a finding.
III. Error also is assigned on the refusal of an instruction as follows:
"The court instructs the jury that if you find and believe from the evidence that the coal hole cover in question had been removed prior to the time plaintiff fell, and was out of position because of such removal, if you so find, at the time plaintiff fell or stepped upon same, then your verdict should be for the defendant."
There was evidence tending to show that several hours before the plaintiff was injured, the lid had been removed and replaced. However, there was no evidence tending to show that it was "out of position" at the time it was tilted by plaintiff.
IV. Error also is assigned on the refusal of an instruction as follows:
"The court instructs the jury that if you find and believe from the evidence that the coal hole cover in question, when sitting completely in the metal ring, would not tilt when stepped upon by one walking along the street, then your verdict should be for defendant."
The instruction assumed that the lid would rest "completely in the metal ring." Furthermore, there was no evidence tending to show that it would rest "completely in the metal ring."
V. It is suggested that the amount of the judgment should be reduced. Plaintiff had been an "out-door woman," in good health and did her own housework, including washing and ironing. She suffered severe injuries to the left groin, left hip, right knee and back. She also suffers continuous pain. She has no control of the muscles of her right leg, and, in walking, the leg "turns out and to the right." Sedatives are necessary that she may sleep and rest. The injuries are permanent. Further detail is unnecessary.
The verdict is not excessive and the judgment should be affirmed. It is so ordered.
All concur except Hays, J., absent.