Opinion
Nos. 21776, 21777.
December 8, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, DIMMITT HOFFMAN, J.
Charles L. Carr, R. Carter Tucker, John Murphy, William H. Wilson and J. Gordon Siddens, Kansas City, for appellant Kansas City Public Serv. Co.
David M. Proctor, John J. Cosgrove and T. James Conway, all of Kansas City, for appellant Kansas City.
Lyman Field; Rogers, Field Gentry, Kansas City, for respondent.
This is an appeal from a judgment for the plaintiff in the sum of $5,000 against both defendants for personal injuries received when she stepped into a hole in the street while alighting from a street car. Both defendants appealed and filed separate briefs.
We shall refer to defendant, Kansas City Public Service Company, as the Service Company; and to defendant, Kansas City, a municipal corporation, as the City.
The petition charged the City negligently failed to repair the hole after it knew, or should have known, of its dangerous condition; and that the Service Company negligently stopped its street car for the discharge of passengers at a place not reasonably safe. The respective answers denied the allegations of negligence and pleaded that plaintiff was guilty of contributory negligence.
The evidence relative to the cause of plaintiff's injuries is to the effect that she was a passenger on one of the Service Company's street cars on the way to work and had to transfer to another street car at 43rd and Main streets; that as she alighted from the street car she stepped into a hole on the street and broke her leg; that at the time it was dark and she was holding onto the street car rod as she alighted; that she looked where she was stepping but, because it was dark. she did not see the hole until after she had fallen; she described the hole as being about "eight to ten inches round and it went down sort of a cone, the best I can describe it," and was "I imagine three or four inches" deep. Concerning whether it was light or dark at the time of the accident, plaintiff said it was "dark." Other of her witnesses said: "It was dark, foggy like"; "It was more dark than it was light"; "It wasn't completely dark either one, * * * just break of day." All witnesses agreed that the street car lights were on.
Concerning the size of the hole, plaintiff's witness Mihlic testified on direct examination that it was "the size of a pie plate, * * * 1 inch deep and 6 inches in diameter." On cross-examination he stated it was 1 1/2 inches deep, something like that * * * about 1 1/2 inches deep, * * *." On direct examination Mr. McCastle, who was waiting to board the street car, testified: "* * * the hole looked like it was deep * * * about four or five inches wide, * * *." On cross-examination he said it was "three to four inches deep. * * * it looked like there had been a sledge hammer hit and it scooted back towards the track, * * *." Mr. Calvin, who was operating another street car coming from the opposite direction and waiting for the car from which plaintiff alighted, testified that the "hole in the pavement there at the place where she (plaintiff) got off the street car that day was the size of your head, about 2 inches deep."
Defendants' evidence was that there was no hole at the place where plaintiff alighted. The Service Company's operator testified, "I stopped at the regular car stop. * * * I didn't observe any hole. The street was — had imperfection in it as most of the streets have, but no hole. * * * I said if there was a hole there I didn't see it."
The City makes but one assignment of error, which is, that the court erred in giving plaintiff's instruction No. 1 "for the reason that said instruction failed to hypothesize facts necessary to establish negligence of Kansas City." The Service Company's assignment 1 (a), in effect, charges the same error. Defendants argue that plaintiff's witness Mihlic described the hole as being from 1 to 1 1/2 inches deep and 6 inches in diameter, and that such a hole is so trivial that the City would not be negligent in permitting it to remain, and the Service Company would not be negligent in stopping its car at that place for the discharge of passengers and, therefore, the instruction should have described a hole of dimensions for which the defendants would be liable and which required the jury to find that there was such a hole in the street. It is also contended that defendants' evidence was that there was no hole in the street, thus conflicting with the plaintiff's evidence and, therefore, the instruction should have defined the dimensions of the hole for which defendants would be liable. In support of this contention they cite: Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366; Knight v. Richey, Mo.Sup., 250 S.W.2d 972; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562; West v. Thompson, Mo. App., 151 S.W.2d 129, 133; Lundahl v. Kansas City, Mo.App., 209 S.W. 564; Maxwell v. Kansas City, 227 Mo.App. 234, 52 S.W.2d 487.
Because of other criticisms of the instruction, we copy it in full.
"You are instructed by the court that it was the duty of the defendant, Kansas City Public Service Company, under the law to exercise the highest degree of care to stop the street car in question at a reasonably safe place at or near 43rd and Main Streets for the plaintiff as its passenger to alight therefrom.
"You are further instructed by the court that it was the duty of the defendant, Kansas City, under the law, to exercise ordinary care to maintain the street in question at the place in question in a reasonably safe condition for travel by the public.
"You are therefore instructed if you find and believe from the evidence that on December 6, 1948, there was, at or near the usual stopping place (if any) for eastbound Swope Park cars at 43rd and Main Streets, a hole, if any, in the street, and that said hole, if any, was so situated that there was danger of persons who might alight from street cars stopping at said place stepping into the same and being injured thereby, and if you further find that the defendants, Kansas City Public Service Company and Kansas City, by the exercise of ordinary care, should have known that said hole was at said place, and that there was a danger of persons being injured by stepping into the same, and if you further find that the defendant, Kansas City, by the exercise of ordinary care, should have known said facts and conditions (if you so find them), in time by the exercise of ordinary care to have removed the hole, if any, before the time of plaintiff's injuries, if any, but that said defendant, Kansas City, negligently, if you so find, permitted said hole to be and remain in the condition as aforesaid, if any, at said place, and if you further find that thereafter and on December 6, 1948, the plaintiff was a passenger on the Swope Park car of the defendant, Kansas City Public Service Company, and desired to transfer at 43rd and Main to another car, and that the defendant, Kansas City Public Service Company, negligently (if you so find) stopped said car at the aforesaid hole, if any for the plaintiff to alight, and that said place was not a reasonably safe place for plaintiff to alight, and that as plaintiff alighted from said car, she stepped into the aforesaid hole and received injuries, if she did, and if you further find that plaintiff herself was at all times in the exercise of ordinary care for her own safety, then you are instructed by the court that your verdict must be in favor of the plaintiff and against both of the defendants."
The first two paragraphs correctly define the duty of the defendants. It then requires the jury to find: That there was a hole in the street so situated that there was danger of persons alighting from a street car stepping into the same and being injured thereby; that the defendants should have known thereof; that the City negligently permitted said hole to remain in such condition, after knowledge thereof; that the Service Company negligently stopped its car at said place for plaintiff to alight; that said place "was not a reasonably safe place for plaintiff to alight"; and that she stepped into said hole and was injured thereby. It did not specify the dimensions of the hole and the present question is, should it have done so?
It may be conceded that the defendants would not be liable if it could be said the hole was so slight or trivial that defendants would not reasonably anticipate that such a slight defect would likely cause injuries to persons alighting from a street car at that place. Taylor v. Kansas City, supra.
Defendants argue that plaintiff's witness Mihlic described such a place, citing Lundahl v. Kansas City, supra, and Maxwell v. Kansas City, supra. There is language in those opinions which lends support to defendants' contention. However, those cases were discussed and distinguished by the Supreme Court in Taylor v. Kansas City, supra, and by the St. Louis Court of Appeals in Butler v. City of University City, Mo.App., 167 S.W.2d 442. In the Taylor case the court held that a submissible issue was made where the evidence showed there was "A sudden, abrupt, and rounded downward slant or slope in the surface of the sidewalk of 1 1/2 inches in 8 inches to the level manhole cover, * *" [342 Mo. 109, 112 S.W.2d 565] together with other circumstances which the court took into consideration in determining whether the place was not reasonably safe. In the Butler case the court gave consideration to the question of the City's liability for a defect in a sidewalk where a patch had been made which had sunk below the general level of the sidewalk, causing an abrupt vertical separation at the east end of the patch and forming a depression of from three-fourths of an inch to an inch and a half, and took into consideration the fact that the defect was located at one of the busiest corners in the city and adjacent to a bus stop where persons transferred from one bus to another; that the surface was rough and uneven, and held that a submissible case had been made. The court said, 167 S.W.2d at page 445: "In determining this question, no hard and fast rule can be applied. Each case must stand or fall on its own facts. A jury might reasonably find that defendant was negligent in permitting a one and a half inch hole to remain in a sidewalk at one location and was not negligent in permitting it to exist at another, depending upon the surrounding circumstances." The court also distinguished the Lundahl and Maxwell cases, supra, and said, 167 S.W.2d at page 445. "We do not believe that liability in such a case is a matter of inches, and we are reluctant to say to an injured person that he missed going to the jury by one-half inch, when from all the facts and circumstances a jury might reasonably find that the action of the defendant in allowing the hole to exist, whatever its measurements, was not up to the standard of conduct expected of an ordinarily prudent person."
In addition to the evidence concerning the dimensions of the hole, there was also evidence that it was located at a regular car stop and where a person alighting from a car would likely step into it; that this was a regular place for passengers to transfer from one street car line to another, and was in a business section, not in a remote residential section. Under all the facts and circumstances, and under the holdings in the Taylor and Butler cases, supra, we are forced to the conclusion that the minimum dimensions of the hole, as described by plaintiff's witness Mihlic, would not make the hole so trivial as to relieve the defendants of liability, but, on the contrary, made an issue whether the place was not reasonably safe. Therefore, it was not necessary for the instruction to give the dimensions of the hole because of the variance in plaintiff's evidence.
However, defendants contend that their evidence was that there was no hole in the street and this constituted a conflict in the evidence which would require a submission of the dimensions of the hole. In support of this contention they cite Yates v. Manchester, supra; Dahlen v. Wright, supra, and Knight v. Richey, supra. We think that a careful study of those cases, and of many others which could be cited, will demonstrate that they are merely following a long established rule in this state to the effect that a verdict directing instruction must submit all essential facts which, if the jury finds are true, will constitute liability of the defendant on the specific issue submitted. The difficulty lies not with the rule but with its application in a given case. Essential facts differ in most cases. In discussing and construing the Yates case the Court, in Knight v. Richey, supra, said, 250 S.W.2d at pages 977, 978: "* * * where the facts are complicated and there is substantial evidence supporting divergent factual situations or theories and under the facts and in the circumstances of only one of which could a party have been negligent as submitted, then, in fairly defining and submitting the issue to the jury, in a verdict-directing instruction, the facts * * * essential to support the finding should be hypothesized as simply and plainly as possible in the submission of the issue, so that a jury may evaluate and weigh the evidence tending to prove and to refute the facts essential to a finding upon the issue, and so that the jury may not make a finding upon the issue based on facts which in legal effect would not support the finding. * * * In the instant case there * * * having been no real conflict of the factual theories relating to the physical setting and the circumstances of the collision relevant to the issue of speed, there was no real necessity of more particularized hypotheses of the facts then the hypotheses of Instruction No. 1. In the instant case a submission of the ultimate facts (negligence, specifically as submitted — causation — injury) essential to a finding for plaintiff in the existing circumstances would seem to have been sufficient."
The facts in the instant case touching the question of negligence are not complicated or involved. Plaintiff's evidence was to the effect that there was a hole in the street at the place where she alighted of sufficient size to submit the issue whether it was not reasonably safe; that she was injured by stepping into it; and that it had been there a sufficient length of time to charge the defendants with knowledge thereof; while defendants' evidence was to the effect that there was no hole at said place. Thus when the jury was required to find, among other things, that there was a hole in the street so situated that there was danger of persons alighting from street cars being injured by stepping into the same and that such place "was not a reasonably safe place for plaintiff to alight," it submitted all necessary essential facts. We do not believe this conclusion runs counter to the holding in the cases cited by defendants.
The Service Company next complains that the instruction is erroneous because it does not require the jury to find that the hole in the street was dangerous or not reasonably safe. The instruction defines the duty of the Service Company "to exercise the highest degree of care to stop the street car in question at a reasonably safe place * * *" and required the jury to find "that said hole was so situated that there was a danger of persons who might alight from street cars stopping at said place stepping into the same and being injured thereby * * *," and that the Service Company "should have known that said hole was at said place, and that there was a danger of persons being injured by stepping into the same, * * * and that the defendant, Kansas City Public Service Company, negligently * * * stopped said car at the aforesaid hole * * * and that said place was not a reasonably safe place for plaintiff to alight, * * *." (Italics ours.) These specific findings of the duty of the Service Company were approved in Costello v. Kansas City, 280 Mo. 576, 219 S.W. 386. The obligation of the Service Company is "to select a reasonably safe place" for a passenger to alight. Williamson v. St. Louis Public Service Company, Mo. Sup., 253 S.W.2d 97; Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105; Moses v. Kansas City Public Service Co., 239 Mo.App. 361, 188 S.W.2d 538. The Service Company relies on Fullerton v. Kansas City, Mo.App., 236 S.W.2d 364, 366; and State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 58, 124 S.W.2d 1194. In the Fullerton case the instruction required the jury to find that a hole in the street was "unsafe or dangerous". We held that in as much as the instruction disjunctively submitted the issue whether the street was unsafe, it was erroneous because it made the city an insurer. The instruction in State ex rel. v. Shain required the jury to find that the pedestrian was injured "by reason of the defective condition of said sidewalk * * *." The court held that language erroneous and said, 124 S.W.2d at page 1195: "It is not sufficient to require that the sidewalk be found defective, but it must have been found that the sidewalk was not in a reasonably safe condition." (Italics supplied.) The instruction in the instant case meets that standard.
The Service Company next complains that the instruction is erroneous because it does not require that the operator of the street car had knowledge of the existence of the hole. We do not understand that to be the rule. The instruction does require the jury to find that the Service Company "should have known that said hole was at said place, * * *." There was evidence that the hole had been in the street for quite some time; one witness said it had been there for several months, and another said he had observed it several days before the accident. This was sufficient time to charge the Service Company with constructive knowledge of its existence and, having such knowledge, it was its duty to select "a reasonably safe place for the discharge of its passengers." Caley v. Kansas City, 226 Mo.App. 934, 48 S.W.2d 25, 26; Williamson v. St. Louis Public Service Co., supra; Beahan v. St. Louis Public Service Co., supra. Defendant cites MacDonald v. St. Louis Transit Co., 108 Mo.App. 374, 83 S.W. 1001. The facts in that case, together with the manner in which the question arose, distinguishes it from the instant case.
It is also contended that there is no requirement in the instruction that the Service Company must have had an opportunity to act in some way if it had knowledge of the existence of the hole. As has been said, its duty was to use the highest degree of care in selecting a reasonably safe place for the discharge of its passengers. In Caley v. Kansas City, supra, this court said, 48 S.W.2d at page 26: "The duty of the company is to stop * * * at a point beyond or short of the defect in the street". That was the Service Company's "opportunity to act" after knowledge of the conditions.
The Service Company also contends that the court erred in giving plaintiff's instruction No. 2. This is the damage instruction and the essential part reads:
"You are instructed that in assessing damages, if any, you may take into consideration the nature and character of the injuries, if any, plaintiff received, and pain and suffering, if any, directly resulting therefrom; the reasonable amount of doctor bills and hospital bills required in treatment of said injuries, if any, not to exceed the amount shown in evidence; any and all loss of wages and earnings directly resulting from said injuries, if any."
It is argued that there is not sufficient evidence of loss of wages to guide the jury with respect to that element of damage; that it is so vague, confusing and indefinite that the jury is left to speculate.
Concerning loss of wages, the evidence is that plaintiff was injured on December 6, 1948, and prior to that time she had been earning about $2,200 a year as an employee of the Bureau of Internal Revenue; that as a result of her injuries she was confined in the hospital about five weeks and spent another five weeks at her sister's home, and then returned to her own apartment, and it was about three months before she was able to get around with a cane; that in January or February, 1949, she tried to return to her work at the Bureau of Internal Revenue and did work for two days but was unable to continue, and that sometime later she received a letter from that department terminating her services; that in May, 1949, she contracted Jaundice which, together with her injury, confined her for a time; beginning some time in June she worked six weeks as a waitress, but could not continue because of her weak ankle; during August she worked at Montgomery Ward's in September she was employed as a teacher at Englewood School and taught a 9-month term; during the summer of 1950 she attended Warrensburg Teachers College; she taught school for a short time at Plattsburg in the spring of 1951, and returned to the Warrensburg Teachers College that summer, but had not been employed thereafter. There was no evidence relative to what her wages had been for those respective jobs.
It is apparent there was substantial and definite evidence that plaintiff was unable to work as a result of her injury, for about five months following the accident, and that at her current salary this would constitute a loss of wages of about $1,000. It will be noted the instruction does not authorize recovery for future loss of earnings but only authorizes recovery for loss of earnings up to the time of trial, which directly resulted from her injuries.
But the Service Company says that plaintiff testified to certain illnesses which she had had prior to and subsequent to the accident, and also to certain injuries which she had received in other accidents. That is true, but when such matters were inquired into during the trial plaintiff's counsel stated several times that the only damages which she claimed were those resulting directly from her broken ankle. The jury could not have been confused or mislead concerning this element of damages.
Furthermore, if the Service Company desired a more specific or limiting instruction on the question of loss of wages, it should have submitted an explanatory or modifying instruction. This rule is announced, with authorities, in Raymond, Missouri Instructions, Sec. 132, p. 125, wherein it is said: "Where an instruction on the measure of damages, though general, is not erroneous in its general scope, its generality does not constitute error and if the defendant fears such instruction may be misunderstood he must submit an explanatory or modifying instruction or he will not be heard to complain. (citing Johannes v. [Edward G.] Becht Laundry Co., Mo.Sup., 274 S.W. 377; Brunk v. Hamilton-Brown Shoe Co., 344 Mo. 517, 66 S.W.2d 903; Hancock v. Kansas City Terminal R. Co., 339 Mo. [1237] 1936, 100 S.W.2d 570.)"
In support of its contention that instruction No. 2 is erroneous, the Service Company cites Nowlin v. Kansas City Public Service Co., Mo.App., 58 S.W.2d. 324; Tyon v. Wabash R. Co., 207 Mo.App. 322, 232 S.W. 786, and Smoot, v. Kansas City, 194 Mo. 513, 92 S.W. 363. There is one fact which distinguishes those three cases from the instant case. In all three the petition alleged the specific amount of earnings lost and the evidence showed a larger amount than was claimed in the petition, but the instruction condemned did not limit the jury to the amount claimed in the petition. That is not the situation confronting us because plaintiff's petition did not allege any specific amount. In the Tyon case the court did review the evidence and, under the facts there disclosed, held that the proof of loss of wages was insufficient to submit that issue; but a reading of that case will clearly distinguish it from the proof in this case. We find no error in instruction No. 2.
The Service Company's last complaint is that the verdict for $5,000 is excessive. We have reviewed some of the evidence concerning plaintiff's injuries which is to the effect that there was a fracture at the lower end of the fibula where it forms a part of the ankle; that this fracture was reduced and the leg placed in a cast; that plaintiff remained in the hospital about five weeks, and she then went to her sister's home, where she remained for about five weeks, and was thereafter confined in her own apartment for about three months; that after the cast was removed she used crutches for several weeks, and then used a cane for some time; that she lost about $1,000 in wages. Her hospital and doctor bills amounted to $370.80. She testified that her ankle was painful and weak and had given way or turned on several occasions; that she had to go down stairs sideways to avoid turning it. Dr. Zuber testified that he reduced the fracture and treated plaintiff 31 times while she was in the hospital; the last time was January 29, 1949; that on September 28, 1951, shortly before the trial, he examined the plaintiff and found that the bones had healed properly and that there was no limitation of motion in the ankle; that he thought she had a very good recovery; that at that time he prescribed a special shoe for the injured foot; "It consisted of a wedge to correct a tendency of this weak ankle to turn to the outside." Concerning this condition, he testified: "I think there is almost invariably some residual disability even if the fracture looks good by x-ray, and no gross deformity exists, we know there is ligamentous damage, damage to the ligaments, which heals by a scar tissue reaching across the place where the ligaments are torn. They wouldn't have the resiliency and supporting qualities of regular ligamentous tissue. Q. In your opinion, then, doctor, does this women have a weak ankle in that sense, today? A. Yes, sir. Q. And is that condition permanent? A. Yes, sir."
Dr. Black, who had examined plaintiff about a month before the trial, and at the defendant Service Company's request, testified that he found no present evidence of injuries to the ankle; that it had a full range of motion; no swelling and no deformity; that he found no disability in the ankle; that if there was a fracture it was very well healed; that hospitalization for a month for that type of fracture is most unusual; that such a fracture is not a serious injury and is more nearly comparable to a sprained ankle; that, in his opinion, plaintiff would not be incapacitated in carrying out any gainful occupation; that he found plaintiff was very emotional, nervous and hysterical, and thought such a condition contributed to her remaining in the hospital.
It is not for us to pass on the weight of the conflicting evidence. It is well settled that each case must be considered upon its own facts in determining the question of the excessiveness of a verdict, and that the court should not interfere with the discretion of the jury in fixing the amount of the award unless the verdict shocks the judicial conscience. We must also be mindful of the changed economic conditions of the present time and of the reduced purchasing power of the dollar.
We have considered the cases cited by the Service Company but find them not controlling because of the difference in the facts. We are unwilling to say that the verdict is excessive.
Finding no reversible error, the judgment is affirmed.
All concur.