Churchman v. Kansas City , 44 Mo. App. 665 ( 1891 )

Ellison, J.

This action is for injuries done to the plaintiff and his property. He obtained judgment below. On Twelfth street in Kansas City, Missouri, there is an approach to a viaduct, extended west along Twelfth street about - hundred feet up to the point where it reaches the viaduct proper. The viaduct itself extending thence on in a northwesterly direction over lots and blocks to a point in the state of Kansas. The approach was wooden, while the viaduct was iron. In the first part of November, 1887, there was afire at the stock-yards stable which communicated to the approach and so injured it as to render it unsafe for travel. Plaintiff who was the owner of a wagon, team of horses and harness attempted to drive up the approach on November 18. After getting up, perhaps, half way to the viaduct proper, the structure gave way, precipitating plaintiff, his wagon and team to the ground, whereby his horses were killed, his other property practically destroyed and himself injured.

Contributory negligence was pleaded and submitted to the jury. Among other instructions on this head askedby defendant, the following was given: “5. If the jury believe from the evidence, that, prior to the time plaintiff drove upon said viaduct, there had been a fire that had weakened said viaduct and made it unsafe and dangerous, and if you further find from the evidence that by the exercise of ordinary care the condition of said viaduct could have been seen by plaintiff before driving upon the same in time to have avoided the injury, then your verdict will be for the defendant, the City of Kansas.”

The italicized words were interlined by the court over the objection of the defendant. The words should not have been added. Plaintiff broke through a considerable distance up the approach, and, if he could have seen the defective condition of the approach before driving onto it, it would have been enough, and no question could exist about whether it was in time to have avoided the injury. He should not have driven upon it at all. The instruction as amended has a tendency to confuse. Whether we would consider this as sufficiently harmful to work a reversal, we need not say, as in our opinion the following given for plaintiff on the measure of damages is sufficient to overturn the judgment: “If the jury find for the plaintiff, they have a right, in estimating his damages, to take into consideration the loss of property he sustained, if any; the loss of time occasioned thereby, if any ; the expense of nursing and medicine he was put to, if any ; the personal injury he received, if any ; and any physical pain and mental suffering, if any, he endured consequent upon such injury, and award Mm fair compensation therefor, not exceeding the sum of $2,500.” This instruction directs the jury to allow damages for the loss of time occasioned by the loss of the wagon and team. Loss of time occasioned by plaintiff’s personal injury is a proper element of damage ; but loss of time occasioned by the loss of his property is not. The measure in such case is the value of the property with interest. Counsel concede this, but have contended that the instruction could not have done injury to defendant. We cannot assume this, as the clear language of the instruction introduces an illegal element of damage, and authorizes its allowance.

II. Defendant’s counsel has urged that the city is not liable for an injury on this approach, the structure, as he insists, not having been built or adopted by the city. There was testimony tending to show that it was constantly used by the public, yet it does not sufficiently appear who built it, or for what purpose, or when. Nor is it shown under whose charge or supervision it was, nor where it led, or where it terminated. All these matters are necessary to a full understanding of the case. The city would be liable for permitting an obstruction in a street over which one might fall, whether it placed the obstruction there, or merely permitted it to be there. But this is not such a case. Plaintiff was not injured in that way. He knew of this obstruction in the street, and was using it as a means of passing. There is not enough before us to go into this question, and we do not wish to be understood as expressing an opinion either way.

The judgment is reversed and the cause is remanded.

All concur.