Summary
In Glasgow v. City of St. Joseph, 353 Mo. 740, 184 S.W.2d 412 (1944), the Missouri Supreme Court held that the predecessor to section 82.210 did not apply to actions for wrongful death.
Summary of this case from State v. MoorhouseOpinion
No. 39046.
December 4, 1944. Rehearing Denied, January 2, 1945.
1. NEGLIGENCE: Municipal Corporations: Skidding Accident: Silt Collecting in Road Depression: Liability of City. For several years a depression had existed in a concrete road into which silt would be washed, creating a dangerous condition after a rain. This condition was known to city officials, and the city is liable for a death accident resulting when a taxicab skidded and struck another car.
2. MUNICIPAL CORPORATIONS: Negligence: Notice: Statutes: Notice to City of Injury: Strict Construction of Statute: Not Applicable to Wrongful Death Actions. Sec. 6577, R.S. 1939, requiring a notice to a city of the first class by an injured person before filing suit, is in derogation of the common law and should be strictly construed against the city. It has no application to actions for wrongful death.
3. NEGLIGENCE: Municipal Corporations: Defective Roadway: Instruction not Erroneous. Plaintiff's instruction did not fail to allow the city a reasonable time after notice to remedy the defect in the roadway. And it sufficiently required a finding of the necessary causal connection.
4. APPEAL AND ERROR: Issues not Preserved. Other issues are not sufficiently preserved for review.
Appeal from Buchanan Circuit Court. — Hon. Emmett J. Crouse, Judge.
AFFIRMED.
Homer C. King, City Counselor, Bart M. Lockwood and Wm. H. Utz, Jr., Assistant City Counselors, for appellant.
(1) The demurrer should have been sustained because plaintiff must produce evidence that defendant was guilty of negligence and that such negligence directly contributed to the injuries, before being entitled to judgment. Leuttecke v. St. Louis, 140 S.W.2d 45. (2) The defendant city is not liable for a slippery condition on its streets produced by rains falling immediately before the injury occurred. Leuttecke v. St. Louis, 140 S.W.2d 45; Wolf v. Kansas City, 298 Mo. 85, 246 S.W. 236. (3) Until water and mud on a highway becomes a dangerous obstruction and has existed a long enough time for the city in the exercise of reasonable care to know of its dangerous character and to remove it, it is not negligence and the city is not liable. Brolin v. City of Independence, 114 S.W.2d 199; Manning v. Kansas City, 222 S.W. 927; Badgley v. St. Louis, 149 Mo. 22, 50 S.W. 817; Long v. Woolworth, 109 S.W.2d 85; Smith v. Sears Roebuck Co., 117 S.W.2d 658; Leuttecke v. St. Louis, 140 S.W.2d 45. (4) It is a well established rule of law that where a city's street has been rendered dangerous for use by the unauthorized act of a third person, the city cannot properly be held liable for injuries resulting from the dangerous condition of the street so caused until it has received actual or constructive notice of the dangerous or defective condition of the street, and after the reception of such actual or constructive notice, sufficient time has elapsed to enable the city in the exercise of reasonable diligence to remedy the defect prior to the occurrence of the injury. Nimmo v. Perkinson Bros. Const. Co., 85 S.W.2d 98; Carrington v. St. Louis, 89 Mo. 208, 1 S.W. 240; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; Baustian v. Young, 152 Mo. 317, 53 S.W. 921; McKissick v. St. Louis, 154 Mo. 588, 55 S.W. 859. (5) The giving of an instruction failing to require casual connection between defendant's negligence and the damages sustained by plaintiff is reversible error. Frank v. Melito, 251 S.W. 95; Stermolle v. Brainard, 24 S.W.2d 712-14; O'Leary v. Scullin Steel Co., 260 S.W. 55; White v. Handy, 245 S.W. 613-614; Edmondson v. Mo. Pac. Ry., 264 S.W. 470; Nagel v. Thompson, 170 S.W.2d 416. (6) Instruction 1 is erroneous in that it fails to require a finding that written notice of claim was made by plaintiff on the Mayor as required by Sec. 6577, R.S. 1939. Rice v. Kansas City, 16 S.W.2d 659; Dohring v. Kansas City, 71 S.W.2d 170; David v. St. Louis, 96 S.W.2d 353; Cole v. St. Joseph, 50 S.W.2d 623. (7) An instruction which fails to allow the municipality a reasonable time in which to remedy or remove the obstruction after receiving notice thereof is reversibly erroneous. Allen v. Kansas City, 64 S.W.2d 765; Pearce v. Kansas City, 137 S.W. 629; Ballard v. Kansas City, 104 S.W. 1126; Nimmo v. Perkinson Bros. Const. Co., 85 S.W.2d 98; Richardson v. City of Marceline, 73 Mo. App. 360; Gerber v. Kansas City, 79 S.W. 717, 105 Mo. App. 191; Hitchings v. City of Maryville, 115 S.W. 473, 134 Mo. App. 712; Suttmoeller v. St. Louis, 230 S.W. 67.
Strop Strop and Abe Goldman for respondent.
(1) A municipal corporation having complete control of its streets has a duty to keep them in repair so that the surface will not be dangerous to persons travelling thereon. Lowery v. Kansas City, 85 S.W.2d 104; Benton v. St. Louis, 217 Mo. 687. (2) A city or municipality has actual notice of the condition of its streets if it is shown that the officers or agents of the city or municipality had knowledge of said condition. Willis v. St. Joseph, 171 S.W. 27, 184 Mo. App. 428; Adelman v. Altman, 240 S.W. 272. (3) When a city or municipality knows a condition exists in a street that recurs after rains, it is the city's duty to remove the obstruction or to remedy the cause therefor. Benton v. St. Louis, 248 Mo. 98; Henson v. Kansas City, 210 S.W. 13; Barr v. City of Fairfax, 156 Mo. App. 295; Milledge v. Kansas City, 100 Mo. App. 490. (4) Section 6577, Revised Statutes of Missouri, for 1939, does not require notice to be given to city in cases where the injured party dies as a result of injuries received and caused by the negligence of city. 25 C.J.S., sec. 30, l.c. 1103; Cummins v. Kansas City Pub. Serv. Co., 66 S.W.2d 920; Diariotti v. Mo. Pac. Ry. Co., 170 S.W. 865. (5) Plaintiff's Instruction No. 1 is not open to review by this court, because defendant's assignment of error that said instruction is erroneous, misleading and conflicting and gave the jury a roving commission, does not follow allegations of the petition and omits necessary elements and findings, is too general and is in violation of Rule 15 of this court. Saffran v. R.I. Ins. Co. of Providence, 141 S.W.2d 98; Banty v. City of Sedalia, 120 S.W.2d 59; Langston v. Howell Co., 108 S.W.2d 19; Linneman v. Hawkins, 27 S.W.2d 1046; Plater v. W.C. Mullins Const. Co., 17 S.W.2d 658; Young v. Sinclair Refining Co., 92 S.W.2d 995; Wright v. Stickler, 96 S.W.2d 932; White v. McCoy Land Co., 87 S.W.2d 672. (6) Defendant's points and authorities are mere abstract propositions of law and do not cure the generalities contained in defendant's assignment of errors as to plaintiff's Instruction 1. Majors v. Malone, 100 S.W.2d 300; Willard v. Robinson, 129 S.W.2d 911; Eisenbarth v. Powell Bros. Truck Lines, 161 S.W.2d 263. (7) Plaintiff's Instruction No. 1 is not erroneous because it failed to have the jury find that the plaintiff had instituted this suit within six months of the death of the deceased, as this was an admitted fact during the trial of the case. Lewis v. Terminal Railroad Assn., 61 S.W.2d 234; Buck v. Radcliff Motor Co., 125 S.W.2d 888; Hill v. St. Louis Public Serv. Co., 64 S.W.2d 633. (8) Plaintiff's Instruction 1 is not erroneous because it omits a finding that a notice of claim was timely filed by the plaintiff, as a notice is no part of plaintiff's case where the cause of action is for death resulting to the injured party, caused by the negligence of the City. Diariotti v. Mo. Pac. Ry. Co., 170 S.W. 865; 25 C.J.S., sec. 30, l.c. 1103; Cummins v. Kansas City Public Serv. Co., 66 S.W.2d 920. (9) Plaintiff's Instruction 1 required a finding that the defendant had actual notice of the condition of Frederick Avenue at the place of the accident. Therefore, it was not necessary to make the jury find that the defendant had constructive notice thereof, as plaintiff took upon herself a greater burden than that required by law in making the jury find that the city had actual notice. Berry v. St. Louis, M. S.E.R. Co., 114 S.W. 27; Potterfield v. Terminal Railroad Assn., 5 S.W.2d 447. (10) Plaintiff's Instruction 1 required a finding of causal connection between the injuries received by plaintiff's husband and the negligence of the defendant city, and it is unnecessary for the instruction to state that said negligence was the direct and proximate cause of the injuries from which the deceased later died. Cornovoski v. St. Louis Transit Co., 106 S.W. 51; Wheeler v. Breeding, 109 S.W.2d 1237; Westerman v. Brown Cab Co., 270 S.W. 142; Sutter v. Metropolitan Street Ry. Co., 208 S.W. 851; Weiss v. Soderman Heat Power Co., 227 S.W. 837; Kaiser v. Jaccard, 52 S.W.2d 18. (11) Plaintiff's Instruction 1 required a finding that the city knew that mud and water accumulated on said street; that the city knew of said condition; and that the city knew that the condition so created was dangerous, thereby including in said instruction all elements necessary to establish liability against the city in this regard. Sanders v. City of Carthage, 51 S.W.2d 529; Berberet v. Electric Park Amusement Co., 3 S.W.2d 1025; Bielman v. St. Joseph, 260 S.W. 529. (12) Plaintiff's Instruction 1 required the jury to find that the city had a reasonable time in which to correct the dangerous condition mentioned in plaintiff's instruction; and also plaintiff's Instruction 1 taken into consideration with defendant's Instruction 8, properly declared the law to the jury, and under the facts of this case plaintiff was not required to submit such an issue to the jury. Merritt v. Kansas City, 46 S.W.2d 275; Barnes v. St. Joseph, 151 Mo. App. 523; Drimmel v. Kansas City, 180 Mo. App. 339; Adelman v. Altman, 240 S.W. 272; Smith v. Kansas City Pub. Serv. Co., 56 S.W.2d 838; Barr v. Kansas City, 105 Mo. 550. (13) Defendant's Assignments of Error Nos. 3 and 4 cannot be considered by this court (a) because said assignments of error are not carried forward by the defendant; nor is the court cited to any authority to support said assignments of error; (b) the defendant does not refer the court to the pages of the record where the alleged improper evidence appears, nor to the pages in the record where the trial court refused to admit alleged competent evidence of defendant. Bank of Brinson v. Graham, 76 S.W.2d 376; Burch v. Cleveland, C.C. St. L. Ry. Co., 40 S.W.2d 688; Thompson v. City of Lamar, 17 S.W.2d 960. (14) Evidence that the condition of Frederick Avenue as shown on plaintiff's Exhibit A had existed from two to four years prior to the date of accident was not error. Merritt v. Kansas City, 46 S.W.2d 275.
The City of St. Joseph appeals from a judgment awarding Florence T. Glasgow $10,000 damages for the death of her husband, James A. Glasgow, resulting from injuries received in an accident on June 25, 1942, on Frederick avenue in said city. The assignments of error question the submissibility of plaintiff's case, the correctness of plaintiff's main instruction, and the admissibility and exclusion of certain evidence.
The evidence favorable to plaintiff's case was to the following effect: Frederick avenue is a heavily traveled paved thoroughfare, carrying traffic in and out of the city via United States Highway 36. Proceeding west along Frederick avenue in the vicinity of the accident (near 34th street) there is a decline in the avenue to near the east entrance to State Hospital No. 2, the road is then level to approximately the west entrance to the Hospital and there is then an incline to near the entrance to the employees' dormitory. Between the two main entrances to the Hospital there is a depression in the roadway. A cultivated field was opposite the Hospital on the north side of the highway. This field sloped toward Frederick avenue. Rains would wash silt from the field onto the pavement on Frederick avenue, and it would accumulate, if not removed, in the dip or depression to a depth sometimes of several inches. This soil or silt would become dusty in dry weather, at times obscuring the view of vehicles after passing. After a rain, the place would be muddy and slick. No marker, warning, or caution sign protected the place. A rain started falling about 1:00 A.M. on the night of the accident and up to 4:00 A.M. about .75 of an inch of rain had fallen. The rain was variously described and we feel it fair to say a good heavy rain fell. Dr. Cabray Wortley, a physician and surgeon, passed over the spot a little after 3:00 A.M. on a professional call. He was traveling approximately 25 miles an hour and ran "into this puddle," causing the dirty water to spray over his windshield and blind his vision for a few wipes of the blade of the windshield wiper. He was returning from his call at 4:00 A.M. or a little later. As he approached the "puddle," he slowed to 10 miles an hour and noticed an approaching car (a taxi, operated by James A. Glasgow), traveling eastwardly at approximately 25 miles an hour. When "it hit the puddle," "the water flew up over the windshield and blinded his [Glasgow's] vision." The taxi started to cut across to the north side of the pavement. It kept coming. "After a few wipes of the blade," he attempted to straighten out and the car began to skid. He came toward the witness' car "practically sideways." In the meantime, witness attempted to stop and witness' car skidded about 8 or 10 feet. The collision resulted. The witness, Dr. Wortley, placed the point of the collision "about halfway between the edge of the puddle and this marker," a United States Highway No. 36 marker on the shoulder; and when informed a witness had testified the distance was 200 feet between the puddle and the marker, he stated the point of collision "must be 100 feet west of the marker." This, of course, was an estimate but placed the accident within the first 100 feet east of the "puddle."
The subsequent facts are not determinative of any issue presented by this review. There was evidence to the effect that Mr. Glasgow's death was the result of injuries received in the collision.
Defendant's assignment that its demurrer to the evidence should have been sustained is based upon four points to the effect that defendant was not guilty of actionable negligence. We understand plaintiff does not [414] question the correctness of the holdings relied upon by defendant. They are to the effect that a cause of action does not arise against a municipality merely because the presence of water and mud on a highway creates a dangerous condition until such condition has continued a sufficient length of time to charge the municipality with actual or constructive notice thereof and thereafter to afford it an opportunity to remedy the defect in the exercise of due care. Luettecke v. St. Louis, 346 Mo. 168, 175[2], 140 S.W.2d 45, 48[3], holding the municipality not liable for the dangerous condition of a sidewalk resulting from a freezing rain which started falling a few hours prior to the accident and continued into the following day and which created a general condition produced by natural causes throughout the city. Nimmo v. Perkinson Bros. Const. Co. (Mo.), 85 S.W.2d 98, 101[1-3], citing cases. Plaintiff does not contend, as we read her brief, that this particular silt existed at this particular location for so great a length of time as to charge defendant with legal notice thereof and thereafter to afford defendant due opportunity to remedy the situation. Plaintiff's position is that the municipality suffered an actionable defect, with which it was charged with knowledge, to continue to exist in the street which, in the ordinary course of natural events permitted silt to accumulate and, in the event of a rain, made the street slippery and dangerous — a condition which did not prevail generally throughout the city but was localized to this particular situs after rains. Plaintiff's cause of action is not for negligence in not removing this particular silt and mud. It is for negligence in permitting the condition to continue which allowed the silt to accumulate at this particular place and become slippery and dangerous after rains; a result of natural elements within common sense and knowledge.
Defendant's "Points and Authorities," state these contentions: 1. Plaintiff must adduce evidence of defendant's negligence and the necessary causal connection. 2. Defendant was not liable for a slippery condition resulting from rains falling immediately before the injury. 3. Defendant was not liable until a dangerous condition existed long enough for defendant, in the exercise of reasonable care, to know legally of the condition and have an opportunity to remedy it. 4. Defendant was not liable for a dangerous condition resulting from the unauthorized act of a third person until it had notice, actual or constructive, thereof and a reasonable opportunity to remedy the condition.
The condition heretofore described with respect to this depression or dip in Frederick avenue accumulating silt, etc., was shown to have existed for from two to four years, and to have been known to city officials, police officers and others who would at times remove the silt, for two or more years. Defendant was chargeable with notice of the condition. Willis v. St. Joseph, 184 Mo. App. 428, 431, 171 S.W. 27, 28; Beane v. St. Joseph, 215 Mo. App. 554, 559, 256 S.W. 1093, 1094[1]; Yocum v. Trenton, 20 Mo. App. 489, 494; Barr v. Fairfax, 156 Mo. App. 295, 300, 137 S.W. 631, 633. Also there was evidence that it was feasible to remedy the situation. A municipality is liable, generally speaking, for a negligent failure to keep its streets in a reasonably safe condition for the traveling public. Benton v. St. Louis, 217 Mo. 687, 700(b), 118 S.W. 418, 421(b), 129 Am. St. Rep. 561; Reedy v. St. Louis, 161 Mo. 523, 536(III), 61 S.W. 859, 862(3), 53 L.R.A. 805; Nimmo v. Perkinson Bros. Const. Co., supra. In the circumstances, defendant's authorities do not establish that plaintiff failed to make a submissible case of actionable negligence. See 43 C.J., p. 974, Sec. 1755, p. 1019, Sec. 1799; 25 Am. Jur., p. 641, Sec. 348, p. 802, Sec. 521; Benton v. St. Louis, 248 Mo. 98, 108, 154 S.W. 473, 476[3]; Henson v. Kansas City, 277 Mo. 443, 453, 210 S.W. 13, 16[5, 6]; Reno v. St. Joseph, 169 Mo. 642, 656, 70 S.W. 123, 126; Brolin v. Independence, 232 Mo. App. 1056, 1060, 114 S.W.2d 199, 202[2]; Lueking v. Sedalia, 180 Mo. App. 203, 208, 167 S.W. 1152, 1153[5]; Cross v. Sedalia (Mo. App.), 203 S.W. 648[1]; Hinds v. Marshall, 22 Mo. App. 208, 213(I); Perrotti v. Bennett, 94 Conn. 533, 109 A. 890, 892[5, 6]; Jewett v. State, 249 A.D. 673, 291 N.Y.S. 206; Annotation, 113 A.L.R. 1047 (V).
Defendant claims reversible error because plaintiff's main instruction failed to condition a plaintiff's verdict on a finding, among others, that plaintiff gave a written notice of her right of action under Sec. 6577, R.S. 1939; defendant contending the statutory notice therein required of claims against municipalities of the first class to be a constitutive element of plaintiff's cause of action to be found by the jury. Section 6577 reads:
"No action shall be maintained against any city of the first class on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, unless notice shall first have been given in writing, verified by affidavit, to the mayor of said city, within sixty days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person [415] so injured will claim damages therefor from such city."
Plaintiff's husband gave defendant a verified notice of his injuries on August 21, 1942. He was injured June 25, 1942. He died October 20, 1942. Plaintiff instituted this action for wrongful death on December 16, 1942.
Rice v. Kansas City (Mo. App.), 16 S.W.2d 659, 662[6], is authority for holding a plaintiff's verdict directing instruction covering the whole case should include a finding of the giving of notice under a similar statute (Sec. 7636, R.S. 1939, relating to cities of over 100,000). Cole v. St. Joseph (Mo. App.), 50 S.W.2d 623, 625[4, 5], holds the statutory notice, requiring verification, is not complied with by the service of summons and a copy of plaintiff's petition within the statutory time where the petition was not verified by the plaintiff. Dohring v. Kansas City, 228 Mo. App. 519, 520, 71 S.W.2d 170, 171[1-3], holds a husband suing a city for loss of the services of his wife must give the notice required by now Sec. 7636, mentioned supra, and may not rely upon due notice given by the wife of her claim. David v. St. Louis, 339 Mo. 241, 246[2], 96 S.W.2d 353, 356[2], 106 A.L.R. 849, broadly states that statutes of this nature "are general in character and are intended to embrace all actions, which may be brought against a city, growing out of any defect in the streets or sidewalks"; citing and quoting the Dohring case, supra. The writer concurred in the David case, the issue for determination being the sufficiency of plaintiff David's notice and not the scope of the statutes requiring notice to municipalities of claims against them on account of injuries growing out of defective streets et cetera. We there construed the statute liberally in favor of the injured person and strictly against the municipality. These cases, the only authorities cited by defendant on the issue, do not establish error in the instant circumstances.
As to plaintiffs within its provisions the statute is in derogation of the common law and is construed liberally in their favor and strictly against the municipality. Koontz v. St. Louis, 230 Mo. App. 128, 134, 89 S.W.2d 586, 588[2] citing cases; David v. St. Louis, supra.
Court en banc in Diariotti v. Missouri Pac. Ry. Co., 262 Mo. 1, 7(I), 170 S.W. 865, 866[1], had for consideration a Kansas statute requiring notice. It is there pointed out that a Kansas statutory provision gave a cause of action for wrongful death and another made railroads "`liable for all damages done to any employee . . . in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employes, to any person sustaining such damage'." In 1903, provisions were added to the latter statute requiring written notice "by or on behalf of the person injured" within ninety days of the occurrence. It was held that the provisions of 1903 embraced no indication that they were applicable to the statutory actions for death and a construction of the statute should not be strained for the purposes of embracing death actions.
Section 6577, supra, does not in express words provide for notice of a statutory claim for wrongful death. It conditions the maintenance of an action for injuries, not its institution or commencement, growing out of a defect in a street upon a written notice given within sixty days of the occurrence that "the person so injured" will claim damages. The reference is to the occurrence of an injury and not to damages growing out of any injury by reason of any defect, et cetera. In the Rice, Cole, and David cases the plaintiff suffered injuries to his or her person. In the Dohring case the plaintiff's wife suffered the injuries. In each the plaintiff's cause of action existed under the common law and accrued simultaneously with the injury. Plaintiff's cause of action differed. It was statutory for the wrongful death of her husband. It did not exist at common law. It accrued upon his death, October 20, 1942, not upon or within sixty days of the date he sustained the injuries. It was a new cause of action, not accruing simultaneously with and not constituting a revival of her husband's cause of action. State ex rel. v. Daues (Banc), 314 Mo. 13, 29(V), 283 S.W. 51, 56(V). "Missouri has now . . . definitely taken the view that our statute gives `a new and different cause of action' to the beneficiary; and that because its `very purpose . . . was to give a cause of action where none existed at common law, it did not revive a cause of action theretofore belonging to the deceased, but it gave a new cause of action to named parties bearing relationship to the deceased.'" Cummins v. Kansas City Pub. Serv. Co. (Banc), 334 Mo. 672, 678[2], 66 S.W.2d 920, 923[3]. Consult Philes v. Missouri [416] Pac. Ry. Co., 141 Mo. App. 561, 569, 125 S.W. 553, 555. The statutes giving a cause of action for wrongful death (consult Ch. 38, Art. I, R.S. 1909) were in existence when Sec. 6577 was enacted in 1909 (Laws 1909, p. 271, Sec. 329). The General Assembly could easily have extended the provisions of said Sec. 6577 to expressly include the statutory action for wrongful death. Unless actions for death by wrongful act, are explicitly included, it is generally held that like statutory provisions do not apply to an action for wrongful death. This is especially so where, as in Missouri, the wrongful death action is considered a new cause of action, first springing into existence at the time of death. 25 C.J., p. 1102, Sec. 30, a; 38 Am. Jur., p. 392, Sec. 688; 6 McQuillin, Municipal Corporations, p. 1285, Sec. 2890, n. 12; Annotation, 64 A.L.R. 1059.
We hold the terms of Sec. 6577 do not include an action for wrongful death. It conforms to holdings liberally construing the statute in favor of one within its provisions and strictly against the municipality. It harmonizes with the Missouri constitutional admonition that: "No bill . . . shall contain more than one subject, which shall be clearly expressed in its title." The scope of a statute, more so than its title, should not be extended beyond its clearly expressed provisions.
Defendant's assertion that the instruction failed to allow it a reasonable time, after notice, to remedy the defect is refuted by the instruction conditioning a plaintiff's verdict upon findings, among others, "that said city knew of said condition upon Frederick avenue at the place mentioned in evidence, so that by the exercise of ordinary care on its part it could have remedied said condition, if any, and its failure to do so was negligence, if you so find." The instruction may not be a model but under the authorities it is not reversibly erroneous in this respect, as a reasonable time for remedying the condition is implied in doing it in the exercise of ordinary care and in a failure to remedy constituting negligence. See Merritt v. Kansas City (Mo. App.), 46 S.W.2d 275, 281[12], citing cases. The undisputed evidence was that the defect existed for two to four or more years.
The instruction sufficiently required a finding of the necessary causal connection. It conditioned a plaintiff's verdict upon a finding that plaintiff's husband died as a direct result of injuries received in the accident of June 25, 1942, by reason of defendant's negligence in failing to remedy a defect in the street. Defendant's instructions required like findings.
We have covered all issues for review under defendant's brief. Other matters, including possibly some hereinbefore discussed and ruled, are not sufficiently preserved for review. Consult Scott v. Missouri Pac. Rd. Co., 333 Mo. 374, 389[14], 62 S.W.2d 834, 840[17, 18]; Majors v. Malone, 339 Mo. 1118, 100 S.W.2d 300; Gelhot v. Stein (Mo.), 174 S.W.2d 174, 175[3], citing cases; Bank of Brimson v. Graham, 335 Mo. 1196, 1203[2], 76 S.W.2d 376, 379[2]; Burch v. Cleveland, C., C. St. L. Ry. Co., 328 Mo. 59, 72, 40 S.W.2d 688, 693[10].
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.