Clack v. Kansas City Electrical Wire Subway Co.

ELLISON, J. — Plaintiff was walking along a sidewalk in an alley way of Kansas City and stepped upon the cover or frame of a “manhole” leading into a subway [208] built by defendant under ordinances of the city. She charged that the cover tilted so as to: throw her down, whereby she wag injured. She brought this action for damages and upon trial the verdict was for the defendant in the circuit court. She filed a motion for new trial which the court sustained on the ground of “error in the instructions.” Defendant thereupon appealed from that order. The principal point made by plaintiff in support of the order for new trial is error in instruction No. 3, given for the defendant. It reads as follows: “The court instructs the jury that though you may find and believe from the evidence that the cover of the manhole in question teetered at the time plaintiff claims she was injured, yet if you further find and believe from the evidence that said condition was not caused by any defect in its construction or in the manner it Avas placed in position, or failure to keep same in repair, but from some other cause or causes other than the fault of defendant, which arose subsequent to the time of its being placed in position in the alley in question, then you cannot find a verdict against the defendant, on account of the condition of said cover at the time plaintiff claims to have been injured.” The criticism is that the instruction omits to charge that it was defendant’s duty to inspect and keep the manhole in such repair as to make it reasonably safe. In passing on a criticism of a single instruction for defendant it is necessary to understand the negligence charged and especially other instructions on the same subject Avhich have been given. In this case plaintiff had asked and the court had given very full instructions as to the duty of the defendant in constructing the manhole so as that it would be safe for travel, or to state it differently, so that it would not render the sidewalk unsafe, and the jury were specifically informed as to the manner of its construction, as well as being directed that if it had been constructed in such way as to leave it with “elevations [209] and depressions” so as to canse the top to be unstable or to tilt if one stepped on it, then the defendant was guilty of negligence. The instruction on this'head was lengthy and specific, so much so that the closing paragraph informs the jury that what was meant by the prior particular statements of defendant’s negligent omissions or commissions. It reads: “By this statement the court means that it was the duty of the defendant to have made and kept said cast iron cover in such stable and unteetering condition as a part of said sidewalk as to render and constitute said part of said sidewalk in a good condition on the 4th day of February, 1901, and if you believe from the evidence that the defendant negligently failed to make or keep said cover as a-part of said sidewalk in a good condition on said date, then the defendant was guilty of negligence.” (Italics ours.) But more than that, plaintiff had the court give instruction No. 2, reciting an ordinance of the city prescribing defendant’s duty in constructing the manhole and sidewalk surrounding it and informing them that if defendant had not obeyed such ordinance it was guilty of negligence. This instruction also referred to defendant’s duty to not only construct but to keep the walk and manhole safe for travel. In view of these specific instructions for plaintiff— reading defendant’s instruction which is complained of with them — leaves no room whatever for objection to defendant’s instruction. That instruction is in line with those for plaintiff, for it submits the hypothesis of defendant keeping the manhole covering in repair. We think the instruction wholly without fault and that the trial court’s first conclusion as to its being proper was correct. But even if it could have gone further, yet it was geod so far as it did go, and if plaintiff wished it toi be more specific she should have asked such herself instead of complaining of omissions. [Montgomery v. [210] Railway Co., 181 Mo. 477, 498; Browning v. Railway Co., 124 Mo. 55, 71; Ashby v. Gravel Road Co., 111 Mo. App. 79, 85.] But we do not think there was any occasion for further instructions. There was no ground to suppose the jury was not fully informed as to the issues or that they could have been misled. Plaintiff asked the trial court to declare as a matter of law that she was not guilty of contributory negligence. This the court rightly refused. The testimony of plaintiff in her own behalf, especially the cross-examination, afforded abundant ground for the court’s action. Going outside of the reasons assigned by the court for granting the new trial, plaintiff suggests that evidence was improperly admitted as to the condition of the manhole since the day plaintiff fell upon it. We do not think so. It was properly connected with its condition prior to the accident. [Smith v. Mo. & Kan. Tel. Co., 313 Mo. App. 429.] The motion for new trial assigned as one of the causes that the jury was guilty of misconduct in looking at the manhole and sidewalk while the case was on trial. It is not stated, nor was it shown, that plaintiff was not aware of this while the trial was on. If she was, she should then have brought it to the attention of the court and not awaited the verdict to see if she might not be the gainer. It should have been made to appear that her information came to her after the trial. The proof of the misconduct consisted in an affidavit that one juror looked at the place. But the court ignored the matter and granted the new trial only for the specified reason of error in instructions. For aught we know the court did not credit the statement. To accept the affidavit as absolute and conclusive proof would put it in the power ■of one person to destroy a verdict. The case is not like that of Winn v. Reed, 61 Mo. App. 621. In that case the truth of the statement in the affidavit was practically confessed. The means of contradicting it, if not true, [211] were at hand, while in this case no such condition appears. In our opinion the case was fairly tried. The instructions Avere full and did not contain error, and as no other ground appears for a new trial we Avill reverse the judgment and remand the cause with directions to enter judgment for defendant on the verdict. All concur.