Haniford v. City of Kansas

Barclay, J. The motion made in this court by the Metropolitan Street Railway Company for leave to file a brief and argument on the part of appellant has been granted, though the judgment in its favor in the trial court has become final for the purposes of the present case. But, on a proper showing, this court, in the exercise of its discretion, may permit persons, not parties to the appeal, but having some interest in-the event of litigation, to be heard, where the circumstances appear to justify it. We have, therefore, on this appeal, considered the points discussed in the brief filed by the counsel for the railway company as well as those made by the counsel for the city. II. The plaintiff’s testimony tended to show that while passing along West Ninth street near Wyoming street in the City of Kansas, about seven o’clock in the evening of December 19, 1886, he fell into an open, unlit and unguarded excavation in the street, immediately adjoining the footway for the public at that point. The excavation had been made by the Metropolitan Street Railway Company, in the progress of constructing the underground roadbed for its cable street railway line, by authority of the city; but the particular work in question was under control of an independent [181] contractor therefor, pursuant to a contract between him and the street railway company. The issue we are now dealing with' is between the municipality and the plaintiff, and what may be said in the course of this opinion is intended to apply only to the exact case before us. The street was open to public use and the city was bound to keep it in a condition of reasonable safety for legitimate travel by night as well as by day. Maus v. Springfield (1890), 101 Mo. 613 ; 14 S. W. Rep. 630. Frequently (as in the case cited) notice to the municipality of a defect in the street is necessary to fix a liability upon the former, bnt such notice need not be shown where the condition of the roadway, from which damage results, has been produced by acts done with the express sanction of the municipality. Here the city authorized the excavation in question as a necessary part of the construction of the roadbed of the cable railway line, along and beneath the surface of the street. Such being the fact the intervention of no independent subcontractor for any part of the work (essentially embraced within the general plan, as authorized by the city ) could relieve the latter from liability for its failure to enforce the taking of such precautions in the course of the work, as would keep adjacent portions of the public thoroughfare reasonably safe for the purposes for which they were left open for use. In Barry v. St. Louis (1852), 17 Mo. 121, a different opinion on this point was expressed by a majority of the court (Ryland and GJ-amble, JJ.), Scott, J., dissenting ; but that ruling has since been expressly disapproved and cannot now be accepted as authority. Welsh v. St. Louis (1880), 73 Mo. 71; Russell v. Columbia (1881), 74 Mo. 491. III. Error is next asserted of the refusal of the trial court to give the instruction, numbered 6, as requested by defendant. [182] The evidence on the subject to which that request relates we will assume (though plaintiff denies it) tended to prove that plaintiff fell into another excavation than that dug for the street railway company, and that the one in which he was hurt had been made by a firm of plumbers, at a place distant about one city block from the point which the railway work (in the same street) had reached when plaintiff was injured. Such testimony would go to negative the case presented by the plaintiff’s evidence and, if believed by the jury, they would necessarily have found for defendant under the instruction, numbered, 1, given at plaintiff’s instance, which required them to find (as essential to a verdict for him) that the excavation into which plaintiff fell was made by the railway company in Ninth street between Wyoming and Bell streets. The refused request might properly have been given but we cannot justly regard its refusal as an error affecting the substantial rights of the defendant (R. S. 1889, sec. 2100) when the point it presented for a finding of fact was necessarily involved in the. finding under the other instructions given. Hamby v. Brasher (1873), 51 Mo. 439. IY. It is then insisted by the city that the court erred in giving the instruction that there could be no recovery against the Metropolitan Street Railway Company, one of the original defendants ; but this point is met bj’ the fact that no exception by anyone was noted to the action of the trial court in that particular. This court cannot properly review any exceptions but such as have been “expressly decided” by the trial court. R. S. 1889, sec. 2302, formerly R. S. 1879, sec. 3774. Y. An ingenious attack has been directed upon the instruction, numbered 2, given at plaintiff’s request, regarding the measure of damages. It is said that it fails to confine the jury to the consideration of the elements of damage specified in its closing lines and [183] authorizes any finding that the jury may deem fair and reasonable. It certainly is not as clear in this respect as we should wish to see it, but we are not required to reverse a judgment for every obscurity or inaccuracy of expression that an instruction may disclose. To warrant a reversal there must be positive error such as in our opinion materially affects the merits of the action. R. S. 1889, sec. 2303, formerly R. S. 1879, sec. 3775. This instruction closely resembles the fifth given in Waldhier v. Railroad (1885), 87 Mo. 37, which is recited in full in Hawes v. Stock-Yards Co., ante, p. 60. We think that the remarks in the former decision, as quoted in the latter, apply with equal force to the instruction before us, and that the giving of it by the trial court is not reversible error in this case. VI. The damages awarded plaintiff ($3,500) we do not consider as warranting interference by this court in view of the evidence touching the nature and extent of his injuries. Klutts v. Railroad (1882), 75 Mo. 643. VII. A point has been made on the admission in evidence of certain ordinances of the City of Kansas, claimed to be irrelevant and immaterial. But the ordinances in question have not been preserved in the bill of exceptions and cannot properly form a subject for review. No other assignments of error appear to require mention. The judgment is affirmed, with the consent of all the members of this division.