Hedges v. City of Kansas , 18 Mo. App. 62 ( 1885 )

Opinion by

Philips, P. J.

This is an action to recover damages for personal injuries received by the plaintiff, Sarah S. Hedges, caused by being thrown from a wagon on one of the defendant’s streets, which street, it was claimed, the •defendant permitted to remain out of repair by suffering a hole two and one-half feet deep to remain in it, so •concealed that the wagon ran into it precipitating the plaintiff violently upon the ground. The plaintiff recovered judgment, and the defendant has brought the case here on appeal.

1. It is manifest, from the brief and oral argument of appellant’s counsel, that the controlling question sought by this appeal to have determined is, whether or not under the charter constituting the defendant a municipal corporation it is liable for personal injuries resulting from a failure of its common council to keep its streets in repair. This question is not res integra. It has been passed upon by the supreme court commission in the case of Francis Tritz v. The City of Kansas, not yet reported, opinion delivered by Ewing, C., and unanimously approved by the supreme court. It holds that the city is liable in such case. We feel bound by that decision. 2. The only other question of importance insisted on by appellant is, that the court erred in refusing to give an instruction in the nature of a demurrer to the evidence. The plaintiff’s evidence tended to show that she and her husband, who lived in the country, came to Kansas City in a two horse wagon. On their return home they were passing along 18th street going east. This is one of the principal thoroughfares of the city. At a point between Walnut street and Grand Avenue the dirt was piled up in the center of the street so high as to prevent teams from passing except on either side thereof. She and her husband were sitting on the seat, at the customary height above the wagon bed — the husband •driving. On approaching this point they encountered another wagon coming from the east going west. This wagon passed on the north side of this pile of dirt; and plaintiff’s, according to the custom of the country, took to the right side. The defendant claims that the husband was guilty of contributory negligence, which ought to be imputed to the wife. It has been held by the St. Louis court of appeals, in Flori et ux. v. City of St. Louis, 8 Mo. App. 231-240, that contributory negligen.ce of the husband will not bar the wife from recovering-, for her personal injuries, she being free from negligence.

' Without undertaking here to determine whether or not this be a correct rule, applicable under all circumstances, I am clearly of opinion that there is in this record no such .conclusive evjflence of eren the husband’s contributory negligence as would have precluded him from recovering had he been injured by the accident.

The only evidence on which defendant bases this imputation of contributory negligence is the statement of the wife. She said she noticed on the side of the pile of dirt where they undertook to pass water standing in the street on the south side. It was a muddy looking place; and she said to her husband: “ drive as near to that dirt as you can.” He said, “that is nothing;” and he kept as near the middle of the road as possible, “but he could not get any nearer on account of the pile of dirt.” In an instant the wheel of the wagon dropped into a hole beneath this water, two and a half feet deep — up to the wagon hub — throwing both parties out, and injuring the wife severely.

From this statement it is apparent that whether there was any actual danger at the point was a matter of opinion. It was not an obvious danger. On account of the water and mud it could not be seen by plaintiffs that beneath there was a hole two and one-half feet deep. Under such circumstances it would be little less than bold usurpation for the judge on the bench to direct a nonsuit. A casual visitor from the country could hardly be required to expect or suspect that in one of the principal streets of this city, concealed beneath a puddle of water, there was such a danger trap, especially when the city had placed there no warning signal or barrier.

But counsel say that the plaintiffs ought to have waited until the approaching team had passed, and then they could have safely passed on the left. There would be some force in this suggestion if the plaintiffs had any previous knowledge of the dangerous condition of the pass way on the right. But there is no evidence of this. Seeing, as the wife stated in her evidence, that other ■wagons had been going over this path to the right, and observing the custom of the road to go to the right on ■encountering another team, how could the court hold that the plaintiffs were absolutely guilty of negligence in undertaking to pass to the right %

It was the plain duty of the city to have placed at ■this point a danger signal, or to have erected a barrier there to prevent the uninformed and the unwary from being entrapped. Both the instructions for the plaintiff .and defendant, favorably enough for the defendant, .submitted the question of contributory negligence to the jury. In finding for the plaintiffs, the jury, it must be presumed under these instructions, .found that neither the husband nor the wife were guilty of negligence, but were at the time exercising due care.

Other questions are suggested by counsel in argument, but they are unimportant, and in no wise affect the merits. The judgment of the circuit court is affirmed.

All concur.