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City Hall building on the southeast corner of Gentlemen: I herewith submit for your conFourth and Main streets, in Kansas City, sideration the verdict and proceedings taken Jackson County, Missouri.

and had by the city under ordinance No. “[Signed] Jas. A. Reed, Mayor." 16,129, entitled 'An ordinance to open and Thereafter, on July 8, 1901, at said city establish 17th street from the line of Holly ball, further proceedings were had, as shown street to the westerly line of Franklin by said transcript, as follows:

street,' approved January 5th, 1901. Re"In the matter of the proceedings to ascer- spectfully, John P. Lynch, Acting Mayor." tain and assess just compensation to be paid Whereupon, at a meeting of said council for private property taken for public use on July 8, 1901, an ordinance was passed by for the purpose specified in an ordinance of that body, certified by the proper officers of said city No. 16,129, entitled 'An Ordinance both houses, and approved by the mayor to open and establish 17th street from Holly on July 10, 1901, duly numbered (17,307) and street to the westerly line of Franklin street,' entitled, which was as follows: approved Jan'y 5, 1901.

"Be it ordained by the common council of "Hon. J. P. Lynch, Speaker Lower House Kansas City: of the Common Council of Kansas City, pre- "Section 1: That the verdict and proceededing.

ings (reported to the Common Council July "Now on this day comes John A. Hanley, 8th, 1901, by the mayor) rendered and taken 2. G. Perkins, John Bayha, Wm. Reeves, in causing to be ascertained and assessed by Chas. Bickell, F. N. Phelps, the jury sum- a jury, just compensation to be paid for prihored berein.

vate property taken for the purpose specified “Also appears S. S. Winn, 2nd Assistant in Ordinance No. 16,129, entitled 'An ordiCity Counselor for the city and offers in evi. nance to open and establish 17th street from depce the ordinance and plat under which the west line of Holly street to the westerly ti se proceedings are carried on, and files line of Franklin street,' approved January the atidavit of publication of M. W. Hutchi- 5, 1901, be and the same are hereby con900, of the Kansas City Mail, accompanied firmed." with a copy of the notice to be published Thereafter, on July 27, 1901, the following

ler order of the Mayor, dated May 20th, affidavit was filed in the office of the city 1901, showing publication pursuant to said clerk: potice in the Kansas City Mail as follows, "In the matter of opening and establishto wit:

ing of 17th street from Holly street to Frank*And the court adjudges that all parties lin street under ordinance of Kansas City, have been duly notified and all persons in- No. 16,129. Approved January 5th, 1901. terested duly served, the jury having heard "In the Mayor's Court. State of Missouri, tbe evidence of all persons appearing, and County of Jackson—ss.: A. G. Belinder, baring viewed the property to be taken and upon his oath being duly sworn, states that assessed, render their verdict and are dis- he is the owner of the following property afebarged by the court.

fected by the Judgment rendered in the “[Signed] John P. Lynch,

above-entitled cause, to wit: Lots 4, 5, 6, 7, "Speaker Lower House of the Common Resurvey of Whipple's Second Addition in Council."

block one (1) Kansas City, Missouri, and that And on the same day said Jury returned he appeals to the circuit court of said county the following unanimous verdict:

at Kansas City from the judgment rendered "In the matter of the proceedings to as- in said cause on the verdict of the jury, and certain and assess just compensation to be that this application for appeal is not made paid for private property taken for public for vexation or delay, but on the merits, becse for the purpose specified in an ordinance cause this affiant believes that he is injured of the said Kansas City No. 16,129, entitled by the verdict and judgment of the said *An Ordinance to open and establish Seven- court. A. G. Belinder. teenth (17th) street from Holly street to the "Subscribed and sworn to before me this Testerly line of Franklin street,' approved 27th day of July, 1901. Term expires Nov. Janoary 5th, 1901, the undersigned jury on 18, 1902. R. B. Garnett, Notary Public. onth having heard the proof of the several [Seal.)” perties interested and examined personally Upon this affidavit for an appeal a tranthe property to be taken and assessed, render script of the proceedings before the mayor Gar verdict as follows, to wit:

was certified to the office of the clerk of the "We find that the damages for the prop- circuit court of Jackson county, Mo. erty taken exceed the benefits to be derived On January 10, 1902, this cause was tried by the city at large and by the property in the circuit court of Jackson county, Mo., thin the benefit limits as prescribed by before a jury. Ordinance No. 16,129 was ofsaid ordinance No. 16,129."

fered in evidence, together with the plat and on the same day the mayor submitted other testimony tending to prove the matid Terdict and proceedings to the common ters submitted to the jury. eccocil of said city as follows:

At the close of the evidence the court inMayor's Office. Kansas City, Mo., July structed the jury as follows: "You are insch, 1901. To the Hon. Common Council- structed that this proceeding is for the pur.

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pose of assessing damages and benefits that property of the Kansas City, Ft. Scott & may result from the proposed condemnation Memphis Railroad Company, its successors for public use of Seventeenth street from or assigns, now occupied by the tracks of Holly street to the westerly line of Frank- said railroad company.” The court refused lin avenue under the ordinance of Kansas to give said instruction, to which refusal of City, Missouri, numbered 16,129, and ap- the court said railroad company duly exceptproved on the 5th day of January, 1901, and ed at the time. offered in evidence. The public use of the The cause was submitted to the jury, and property to be taken under said ordinance they returned their verdict, in which they is such that the city must have exclusive pos- assessed the value of the property taken, and session and control thereof, and you are in- the damages done to the improvements therestructed that for each piece of property so on, in carrying out the purpose of opening taken you will ascertain and determine the of the street specified in Ordinance 16,129, just compensation therefor to be the actual and then proceeded to assess against the value thereof. For all damages to each piece defendant and other property owners in the of property not actually taken, so as to give benefit district certain amounts to pay the the city possession or control of the same, compensation fixed as aforesaid for the propyou will ascertain and determine the just erty to be taken and damaged. Against that compensation therefor to be the actual portion of the railroad yards of the defendant amount of the damages such property may included in said benefit district the jury assustain from the use of the private property sessed the sum of $456, and the court entered taken for the public use for which it may judgment that said verdict “be adjudged to be taken, including all that the city from be binding and conclusive on all parties intertime to time may do or cause to be done in, ested," and that “Kansas City have and hold with, or upon the private property so taken. the land taken" for public use, and that the To pay such compensation, you will assess lands assessed with benefits "stand bound against the city the amount of benefit to the and charged to pay" the several assessments city and public generally, inclusive of the ben- against them, and thåt execution issue to en. efit to any property of the city, within the force said payments. From this judgment benefit limits prescribed by the ordinance in defendant in due time and form prosecuted evidence; and against the several lots and this appeal, and the cause is now before us parcels of private property, exclusive of the for consideration. improvements thereon, which you may deem

L. F. Parker and Pratt, Dana & Black, for benefited by the proposed improvement under

appellant. R. J. Ingraham and S. S. Winn, said ordinance, and which is within the lim

for respondent. its of the benefit district prescribed by ordinance introduced in evidence, and shown on the plat introduced in evidence, you will as- FOX, J. (after stating the facts). We are sess the balance of such compensation; each not favored in this cause with a brief by relot or parcel of ground to be assessed with an spondent, or even a suggestion as to the theamount bearing the same ratio to such bal- ory upon which this proceeding can be mainance as the benefit to each lot or parcel bears tained; hence we are left to make such indeto the whole benefit to all the private proper pendent investigation of the legal propositions ty assessed. In making up your verdict, you presented by the record in this cause as will are to be guided by your own judgment as meet the contentions of counsel for appellant, to damages and benefits in connection with so ably and clearly presented in their brief. all the evidence in the case. You will make We have carefully considered the charter up your verdict in writing, and it shall be provisions of article 7 of the freefolders' signed by each of you, and you will all return charter of Kansas City (page 111, Ed. 1898), the same into court. Before returning and which furnishes the basis of this proceeding; making your verdict, you will examine per- and we are unable, with the record before us, sonally the property taken, damaged, and as- made in pursuance of the charter provisions sessed. The city engineer or his assistant referred to, to discover upon what possible may aid you to put your verdict in proper foundation this proceeding rests or can be form, and you will call upon him to do so. maintained. It is fundamental that the powYou are not at liberty to pass on the question er and authority to condemn property and as to whether there is any public necessity open public streets in Kansas City, Mo., rests for the proposed proceeding, that being a with the municipal authority, and that propmatter within the discretion of the common erty cannot be condemned or public streets council.” To the giving of which instruction opened at the instance of any particular inthe Kansas City, Ft. Scott & Memphis Rail- dividual. We have in this case the proceedroad Company duly objected and excepted ing in due form commenced by the proper at the time. Said railroad company thereup- authority in respect to the opening of Sevenon asked the court to instruct the jury as teenth street, by the passage of Ordinance follows: "The court instructs the jury that, 16,129. In pursuance of this ordinance, propin assessing benefits for the proposed opening er plats were made by the city engineer, and of Seventeenth street in this proceeding, you duly filed with the mayor, showing the benefit cannot assess any such benefits against the district in connection with the opening of the

Etreet contemplated as directed by the provicons of the charter. In pursuance of the grovisions of the charter, the mayor organised his court for the purpose of ascertaininz the damages by reason of the property taken for said street and the improvements thereon, and for the assessment of benefits to make compensation for the value of the property taken and condemned by reason of the contemplated street. A jury was impaneled, and, after having heard the proof of the several parties interested, and examining personally the property to be taken and assessed, returned a verdict that the damages for the property taken exceeded the benefits to be derived by the city at large and by the property within the benefit limits as prescribed by said Ordinance No. 16,129. This Terdict, by the acting mayor, John P. Lynch, was submitted to the common council of the city, and by Ordinance No. 17,307 fully confirmed and approved, which ordinance was approved by the mayor on July 10, 1901. So far as the municipal government is concerned, as disclosed by the record be fore us, no further steps were taken tovard the completion of the purposes specifed in the original ordinance, 16,129.

This proceeding, it appears,' reached the ercait court by an appeal on the part of 20 individual who owned some lots of ground in the benefit district, whose property had neither been taken, damaged, nor assessed in respect to the opening of this street. The record in this cause discloses that Kansas City did not appeal from the Ferlict of the jury, nor, in the sense of contesting the adjudications upon its rights in the mayor's courts, was the city a party to the proceeding in the circuit court, nor Is there anything indicated by the record that the city is still undertaking to carry got the purposes specified in the original ordinance, 16,129. Upon this state of facts the conclusion is irresistible that upon the return of the verdict by the jury, and its confirmation and approval by the city council, there was an abandonment of the purposes yeciled in the original ordinance. That the city had a right to discontinue this proceeding is beyond dispute. This right was early stated in the case of Simpson v. Kansas City, 111 Mo., loc. cit. 242, 20 S. W. 39. It was there said (McFarland, J., speaking for the court): "It has long been the rule in this state, and is the general rule elsebere, that, in the absence of statutory regciations to the contrary, a municipal corporation has the right to discontinue proceelings for condemning property for public rses, and to abandon such public improveDents, at any time before a final award in the nature of a judgment in favor of the property owners for their compensation is Dade. Railroad v. Lackland, 25 Mo. 515; St. Joseph v. Hamilton, 43 Mo. 288; State ex rel. v. Hug, 44 Mo. 117; 2 Dillon on Municipal Corporations, $ 609; Lewis on Emi

88 S.W.-4

nent Domain, $ 656; 3 Sedgwick on Damages, § 1166; Mills on Eminent Domain, & 311; City of St. Louis v. Meintz, 107 Mo. 611, 18 8. W. 30.” Judge Dillon, in his most excellent work upon Municipal Corporations (volume 2 [4th Ed.) § 608), clearly states the rule as to the right of a city to abandon or discontinue proceedings to open streets. He says: “Under the language by which the power to open streets and to take property for that purpose is usually conferred upon municipal corporations, they may at any time before taking possession of the property under completed proceedings, or before the final judgment, recede from or discontinue the proceedings they have instituted. This may be done, unless it is otherwise provided by legislative enactment, at any time before vested right in others have attached. Until the assessments of damages have been made, the amount cannot be known; and, on the whole, it is reasonable that, after having ascertained the expense of the project, the corporation should have the discretion to go on with it or not, as it sees fit, it being liable in proper cases for any wrongful acts injurious to the owner, as shown in the next section." In Silvester v. St. Louis, 164 Mo. 601, 65 S. W. 278, Burgess, J., speaking for this court, fully reviews all the authorities and concludes with the full recognition of the rights of the city at any time before any property rights are vested, to abandon or discontinue the proceeding to open a public street. In Whyte v. City of Kansas, 22 Mo. App. 409, it was very appropriately said: “The city stopped at the passage of the ordinance. It might have proceeded much further in the process of condemnation, and yet not been liable to damages, nor fallen under the authorities cited for plaintiff. There is matter for the council to pass upon at the very end of the condemnation proceeding, in its nature judicial, which may put an end to the proceeding and leave the parties in statu quo, which is the amount of damages that have been assessed. The council have, in reserve, the power to determine that the public good to be subserved from the appropriation of private property in a given instance is not commensurate with the damages awarded." To the same effect is City of St. Joseph v. Hamilton, 43 Mo, 282, where it was ruled "that the city may dismiss its proceedings at any time before final judgment,

and then the only liability that would be incurred would be the expenses. So, if, on account of excessive damages, it should be deemed unwise or impolitic to proceed, it might abandon the work.

If the city elects to abandon the enterprise and not to take the property, there is no divestiture of title from the owner, and he is not entitled to pay from the public." This case was afterwards affirmed in State ex rel. Rogers V. Hug, 44 Mo. 116.

If the record before us is to be our guide,

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that Kansas City fully and completely dis- in an affidavit for an appeal that the party continued and abandoned this proceeding appealing, or his agent, shall state what upon the return of the verdict by the jury interest the party appealing has in the prois too plain for discussion; and, this being ceeding. Now, so far as this affidavit is true, we are unable to ascertain upon what concerned, it is absolutely silent as to any ground Mr. A. G. Belinder can continue this interest of Mr. Belinder, who made this afproceeding, and undertake, contrary to the fidavit. The statement that he was the ownwishes of Kansas City, to open a public street er of certain property affected by the judgwithin her corporate limits. The record is ment is by no means a compliance with the absolutely silent as to any steps taken by essential requisite of the charter provision the city to pursue the purposes specified in that he must show what interest he has in the original ordinance any further. The city the proceeding, and, from the disclosures of made no complaint at the verdict. Its com- the record, after the return of the verdict mon council accepted it, confirmed it, and by the jury, and its confirmation by the city approved it. It was no complaining party council, we are unable to conceive of any to the proceeding in the circuit court, and interest that he had in such proceeding, at is making no suggestion now in this court least until some further steps were taken as to the support and maintenance of the by Kansas City to carry out the purposes judgment in this proceeding. Again, under of the original ordinance. The remarks of the showing as disclosed by the record in the court in State ex rel. v. Talty, 139 Mo. this cause, there was no right of appeal on 379, 40 S. W. 942, may very appropriately the part of A. G. Belinder: First, for the be applied to the appeal to the circuit court reason that the verdict of the jury was not in this case. It was said: “But independsuch a verdict as is contemplated by section ently of what may be said of the control, 4 of article 7 of the charter of the city of duty, or power of the courts over property Kansas, as to authorize an appeal from it; in their custody, no appeal will lie from second, the right of appeal on the part of judgments or orders made affecting the Mr. Belinder must rest solely upon the char- same, unless allowed by statute; and, by ter provisions of section 5, art. 7, of the city statute, appeals are allowed only to those charter, and he is not such a person affected who are aggrieved by judgments, orders, or by said proceeding as is contemplated by decrees made, affecting directly some pethat section of the charter, which would au- cuniary or property rights or interests of thorize an appeal by him. The provisions the appellant. Judgments or orders that of this section authorizing an appeal sub- affect or offend merely the taste or sensibilistantially provide that in case the city or ties of a party constitute no legal grievance any person affected by such proceeding, ei- authorize no appeal therefrom." ther as the owner of property taken or dam- We have carefully considered all the disaged, or the owner of property assessed, shall closures of the record in this cause, and we feel aggrieved by the verdict, such party so are of the opinion that the conclusion is iraggrieved may appeal to the circuit court resistible that the city, upon the return of of Jackson county, Mo. Mr. Belinder's prop- the verdict by the jury, and its acceptance erty was neither taken nor damaged, nor and approval by the city council, abandonwas there any assessment of any kind made ed the proceeding put in operation by Ordiagainst his property. In fact, his property nance 16,129; and it may be further added was in identically the same condition and that the verdict of the jury and its approval position after the return of the verdict, and by the city council did not in any way affect the confirmation of it by the city council, as the interest in any property of A. G. Belinit was before; hence he had nothing to ap- der, and was not such an adjudication of any peal from. The only person, under the pro- of his rights as authorized an appeal, and visions of the city charter governing this pro- that the circuit court was without jurisdicceeding, who was authorized to prosecute tion to render the judgment disclosed by the an appeal, must be some one whose property record. has been taken, damaged, or assessed by With these views, it results in the conclusuch proceeding. The right of appeal in civil sion that the judgment should be reversed, actions was unknown to the common law, and it is so ordered. All concur. and this appeal rests solely upon the provisions of the city charter, and it is essential to the exercise of this right that the provisions of that charter shall be substantially

REYNOLDS v. ST. LOUIS TRANSIT CO. pursued. State ex rel. v. Woodson, 128 Mo.,

(Supreme Court of Missouri, Division No. 1. loc: cit. 514, 31 S. W. 105; State v. Thayer,

June 15, 1905.) 158 Mo. 36, 58 S. W. 12; Thomas v. Town

1. BILL OF EXCEPTIONS-AMENDMENT.

The amendment of defendant's bill of exMut. Ins. Co., 89 Mo. App. 12; Schroeder v.

ceptions by incorporating into it an admission Jabin, 94 Mo. App. 111, 67 S. W. 949.

of defendant's counsel, contained in plaintiff's Again, it may be said that, upon the face bill, that the accident was the result of defendof the affidavit of Mr. Belinder, this appeal

ant's negligence, if allowable, would not mate

rially alter the case, where the admission was was unauthorized. Section 5, supra, of the

nothing more than what the uncontradicted evicity charter, makes it an essential requisite dence showed was the fact.

2 CARBIERS-PASSENGERS – PERSONAL INJUBIES.

In an action against a street railroad company, wbere it appeared that defendant receive ed plaintiff as a public carrier, and he was being carried as a passenger when he was injured it was not error to instruct a finding for piaintiff if the jury found, among other facts, Ebat defendant received plaintiff as a passenger to be carried for hire, though there was no evidence that plaintiff paid his fare, or that fare was demanded.

[Ed. Note.-For cases in point, see vol. 9, Cent Dig. Carriers, § 974.) 3. SAME – INSTRUCTIONS — ERBOR AFFECTING MERITS.

In an action against a street railroad for injuries, where it was alleged that defendant, bs a "Degligent and violent rate of speed" of another car, caused the collision, an instruction to sod for plaintiff if the jury found that deiepdant so negligently ran and operated its eers, or either of them as to cause the collision, thoczb broader than it should have been, was Dot error affecting the merits, which will be regarded on appeal. 4. PERSONAL INJURIES – MEASURE OF DAMAGES.

In an action for injuries, an instruction tbst in estimating the damages the jury may consider plaintiff's diminished capacity for earning money, if any, and on account thereof make soch allowance as may be fair and just for any oss they may believe from the evidence he has sustained in the past by reason thereof, and for 45 loss they may believe he may sustain in his future earnings by reason of such diminished earning capacity, is not erroneous, as authorizing a recovery for loss of time, and also for dirrinished earning capacity during the same period, and for loss of what he "may" sustain in the future. 5. SAYE-EXCESSIVE DAMAGES.

An award of $23,400 for injuries sustained is excessive, though plaintiff was 42 years o!d, in good health, and his injuries have result. din diabetes and paralysis of both legs, and be is a helpless cripple, and may remain so permanently.

(Ed. Note.-For cases in point, see vol. 15, Cent Dig. Damages, 8 374.]

Appeal from Circuit Court, Franklin Coun. ty: John W. McElhinney, Judge.

Action by William Reynolds against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Re versed.

Boyle, Priest & Lebmann and Geo. W. Easley, for appellant. John W. Booth, Oscar E. Meyerseieck, Richard F. Ralph, Thomas F. Fauntleroy, and Shepard Barclay, for respondent.

but taken by change of venue to Franklin county, where it has been twice tried. On the first trial there was a verdict for the plaintiff for $35,000; but the court sustained defendant's motion for a new trial, and the cause was tried again. On the second trial the verdict was for $23,400, and the court overruled defendant's motion for a new trial, whereupon the defendant took this appeal.

1. It appears from the respondent's abstract that when the appellant presented its bill of exceptions to the trial judge for his signing the plaintiff insisted that the argument of Mr. Hocker, the defendant's attorney, to the jury, should be inserted in the bill of exceptions, and for that purpose presented to the court the stenographer's report of that argument; but the court refused the plaintiff's request, and signed the bill as it was offered by the defendant. Then the plaintiff excepted to that ruling, and the court thereupon signed a bill of exceptions for the plaintiff which contained the argument, and respondent now asks that his bill of exceptions be taken as a part of the record in the cause. The significance of this request is that in the argument of the defendant's counsel he frankly admitted to the jury that the accident was the result of defendant's negligence, and that the only point on which the plaintiff and defendant could not agree was the amount of damages the plaintiff should have to compensate him for his injury; that he was injured to some extent, but not to the extent claimed by him. Respondent contends, on the authority of what is said in Darrier v. Darrier, 58 Mo. 222, that this court should cause the defendant's bill of exceptions to be amended or correct. ed, by inserting the contents of the plaintiff's bill into it, or consider it done without going through the formality of doing it or requiring it to be done. We do not understand the case referred to as being a precedent for amending appellant's bill of exceptions in the manner proposed. But it would not materially alter the case if the bill of exceptions contained the admission referred to, because the admission was nothing more than what the uncontradicted evidence showed was the fact, and the counsel, in frankly making the statement, was not only dischar. ging his duty to the court, but also discharging his full duty to his client, by presenting the case to the jury in the very best light in which it could be presented. The evidence showed that the plaintiff was passenger in one of defendant's cars, which was struck by another of defendant's cars, and he was thereby injured. It was there. fore in legal contemplation the defendant's own hand that struck the plaintiff. W those facts were shown, a prima facie case was made for the plaintiff, and the burden of accounting for the collision was shifted to the defendant; but defendant offered no evidence on that point. The only evidence offered by defendant was that of experts

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VALLIANT, J. Plaintiff obtained a judgment for $23,400 damages for injuries to his person received in a collision of two street cars of defendant. The defendant appeals.

The plaintiff was a passenger on one of defendant's street cars on what is called the "Bellefontaine Line," and as the car was crossing another track of defendant, called the Fourth Street Line, a car on the lastDamned track, aiming for the same crossing, struck the car in which plaintiff was riding, In consequence of which the plaintiff was thrown out of the seat and received severe injuries. The suit was begun in St. Louis,

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