City of Kansas City v. Bradbury

The opinion of the court was delivered by HoetON, C. J.: This was an action brought by Mrs. Mary J. Bradbury against the city of Kansas City, to recover damages for personal injuries alleged to have been caused on the night of the 29th of August, 1886, by reason of the unsafe and defective condition of a sidewalk on Seventh street in that city. It was clearly established by the evidence that Mrs. Bradbury was tripped up and thrown down by a loose board or plank in the sidewalk, and thereby severely and permanently injured. There is no evidence in the record tending to show any contributory negligence upon her part, and the principal question of fact for the determination of the jury was, whether prior to the injuries complained of the defects in the sidewalk were known to the officers of the city having charge of the streets, or could have been known by [387] the exercise of ordinary care and diligence upon their part. The jury found specially that the sidewalk was defective where Mrs. Bradbury was injured, and that the defects in the sidewalk had existed about six months before she was injured. The jury also found that the sidewalk was not properly constructed. It is contended that the board or plank of the sidewalk which caused Mrs. Bradbury to fall was loose for only a short time before her injury. An instruction was asked by the city to the effect that— “If the jury believe from the evidence the sidewalk upon which the plaintiff fell and was injured was in a reasonably safe and suitable condition of repair at the time of the alleged injury, save and except the loose board that flew up and tripped the plaintiff, they should find for the defendant.” An examination of the record shows there was evidence supporting the findings of the jury, and therefore we cannot say that there was no proof to sustain the judgment. In this view, the instruction was properly refused. All questions of fact in such a case are for the jury to decide, not the court. It is also contended that the trial court committed error in refusing various other instructions prayed for. The instructions given sufficiently covered the ground. The facts of the case were in a very narrow compass. Other and further instructions would not have been beneficial, unless the court had explained to the jury what it meant when it referred to “the proper officers of the city having notice of the condition of the sidewalk.” The court undoubtedly meant the officers of the city having charge of the repairs of the streets, but the city did not ask the couit to define “the proper officers,” and the instruction cannot be said to have been erroneous or misleading. The objection to the order in which the evidence was admitted is not well taken, because in such matters a court has some discretion. A trial court may even open a ease for the purpose of receiving further evidence. ( West v. Cameron, 39 [388] Kas. 736; The State v. Sowders, 42 id. 312, and cases there cited.) It is further contended that the court erred in refusing to submit to the jury the following questions: “Q,. What sum do you find, if any, that the plaintiff is entitled to on account of money paid for medicine and the services of a physician ? “Q,. What damage do you find, if any, for the plaintiff for loss of time from the performance of her usual labors and duties?” The court very properly might have submitted the first question. A similar question was submitted in City of Satina v. Trosper, 27 Kas. 544. Either party has a right to a written finding upon any particular question of fact involved in the case. (K. P. Rly. Co. v. Reynolds, 8 Kas. 623; Bent v. Philbrick, 16 id. 190; City of Wyandotte v. Gibson, 25 id. 236.) But an examination of the record shows that no material error was committed in the refusal to submit the first question, and no error whatever in refusing to submit the last one. The evidence as to expenses for medicines and medical attendance was uncontradicted. Mrs. Bradbury testified upon that matter. Her evidence was not controverted. As to the last question, there was no positive or specific statement by any witness of the value of the services of Mrs. Bradbury. She testified that she was a nurse, but did not state what her daily, weekly or monthly wages were; therefore there was no evidence offered upon which to submit the last question. Upon the record presented to us, we cannot perceive any error occurring upon the trial prejudicial to'the rights of the defendant, and therefore the judgment of the district court will be affirmed. All the Justices concurring.