Opinion
No. 21698.
May 5, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, ALLEN C. SOUTHERN, J.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor and Preston H. Longino, Asst. City Counselor, all of Kansas City, for appellant.
Charles Rubins, Thomas E. Hudson, and Hudson, Whitcraft Cavanaugh, all of Kansas City, for respondent.
This is an action for personal injuries and property damage alleged to have been caused by the negligence of defendant city in failing to maintain in a reasonably safe condition the iron cover of a certain manhole in one of its public streets. The answer was a general denial coupled with a plea of contributory negligence. Plaintiff recovered a judgment for $3000 and defendant has appealed, contending that the court erred in giving plaintiff's instructions 1 and 4.
No detailed statement of the evidence is necessary to an understanding of the question presented for determination. Twenty-second Street runs east and west in Kansas City, Missouri, and Tracy Avenue and Forest Avenue run north and south intersecting Twenty-second Street. The manhole in question was located near the center of Twenty-second Street and about midway between Tracy Avenue and Forest Avenue. It appears from plaintiff's testimony, which was uncontradicted, that about five o'clock on the afternoon of January 8, 1948, he was driving his automobile in a westerly direction on Twenty-second Street at a speed of fifteen to seventeen miles an hour, and as the left front wheel of his car passed over the defective cover of the manhole the cover "flew off, and it seemed to ride under the car for just a few feet," causing him to lose control of the car. The car was damaged and plaintiff sustained personal injuries.
Plaintiff's main instruction, numbered 1, charged that if the jury found certain hypothesized facts "then it became the duty of said defendant city, Kansas City, to exercise ordinary care in keeping said street in a reasonably safe condition for persons travelling thereon while exercising ordinary care for their own safety"; and it required a finding, among others, "that plaintiff was at all times referred to in evidence in the exercise of ordinary care for his own safety." Defendant contends that the court erred in giving this instruction because the Motor Vehicle Act, section 304.010 RSMo 1949, V.A.M.S., required plaintiff to exercise the highest degree of care as he drove his automobile along Twenty-second Street, citing Burlingame v. Landis, Mo.Sup., 242 S.W.2d 578. See also Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006; Munden v. Kansas City, Missouri, 225 Mo.App. 791, 38 S.W.2d 540. We think defendant is in no position to complain for its own instruction A told the jury "that the city is not an insurer of the safety of its streets or of the safety of persons travelling thereover, but the full measure of the duty of the city in reference to the maintenance of public streets is that it exercise reasonable and ordinary care to keep them in a reasonably safe condition for travel thereon for those who use them in the exercise of ordinary care." It is well settled that "one party cannot be allowed to complain of another's instructions, where his own announced the same doctrine, although it be erroneous." Reilly v. Hannibal St. J. Ry. Co., 94 Mo. 600, 611, 7 S.W. 407, 411. See also Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30; Toroian v. Parkview Amusement Co., 331 Mo. 700, 56 S.W.2d 134; Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792; Coleman v. Rightmyer, Mo.Sup., 285 S.W. 403; Cieslinski v. Clark, Mo.App., 223 S.W.2d 139; Plannett v. McFall, Mo.App., 284 S.W. 850.
As stated, defendant also assigns as error the giving of plaintiff's instruction 4. This assignment need not be considered as defendant's motion for a new trial contains no reference to instruction 4. Section 512.160, subd. 1 RSMo 1949, V.A.M.S.; Supreme Court Rule 3.23.
The judgment should be affirmed.
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.