
    NANNIE ATCHISON, Respondent, v. THE CITY OF ST. JOSEPH, Appellant.
    Kansas City Court of Appeals,
    November 16, 1908.
    1. TRIAL PRACTICE: Instructions: Evidence: Scienter. Ah instruction in the face of the evidence is properly refused, and this is applied to a traveller’s knowledge of a balustrade in a viaduct in a street.
    2. -: -: Pleading. Instructions submitting an hypothesis not authorized by the petition is properly refused.
    3. MUNICIPAL CORPORATIONS: Obstructions: Streets: Public Necessities. A city cannot rightfully maintain or permit obstructions in its streets; but this rule does not obtain in regard to obstructions of a permanent class incident to public necessities authorized by law, such as viaducts, etc.
    Appeal from Buchanan Circuit Court. — Hon. Chesley A. Mosman, Judge.
    Reversed and remanded {with directions).
    
    
      W. B. Norris and O. E. Shultz for appellant.
    (1) The court’s refusal to give instruction V, for plaintiff, was not error and did not entitle plaintiff to ,a new trial for the reasons, (a) that the part in italics assumes that the girder was an obstruction ; (b), that there was no evidence to call for such an instruction, as plaintiff knew of the location of the girder of which she complains; (c), that it was not such error as would be prejudicial to plaintiff. (2) The court’s refusal to give instruction VI, for plaintiff, was not error and did not entitle the plaintiff to a new trial for the reasons, (a), that plaintiff’s instruction A, including everything asked for in instruction VI; (b), that the portion in italics is not justified by the pleading, as they declare a total absence of light; (c), that it was not such error as would be prejudicial to plaintiff. (3) The court committed error in refusing to sustain defendant’s demurrer to the evidence. Seibert v. Railroad, 188 Mo. 657.
    
      
      John S. Boyer for respondent.
    (1) Plaintiff was entitled to instruction V, and the trial court was right in granting plaintiff a new trial on the ground that said instruction was refused. Perrette y. Kansas City, 162 Mo. 250; Cassaday v. Kansas City, 119 Mo. App. 118; Holloway y. Kansas City, 184 Mo. 30. (2) Plaintiff was entitled to instruction VI, and the trial court was right in granting plaintiff a new trial on the ground that said instruction was refused. Davenport v. Hannibal, 108 Mo. 478; Russell v. Columbia, 74 Mo. 480. (3) The reasons assigned by the trial court for granting plaintiff a new trial are sufficient. However it is the law that although the court assigned a wrong ground for granting a new trial this court will uphold the action of the trial court if it can find support on any other ground recited in the motion. Morelock v. Railroad, 112 Mo. App. 644; Davenport v. Hamilton, 108 M'o. 477, 478; Russell v. Columbia, 74 Mo. 480; Milling Co. v. Transit Co., 122 Mo. 269; Millar v. Car Co., 130 Mo. 523; Baughman v. Fulton, 139 Mo. 559; Hoepper v. Hotel Co., 142 Mo. 390.
   ELLISON, J.

Plaintiff was injured by being thrown from a buggy while driving over a viaduct maintained by the defendant city along-and as a part of one of its streets. She brought this ■ action for damages. The verdict was for the defendant. The trial court granted plaintiff a new trial and defendant appealed from that order.

The reason assigned by the court for ordering a new trial was that it considered it had committed error in re'fusing instructions numbered 5 and 6, offered by the plaintiff. We think those instructions were properly refused.

The evidence shows the viaduct consisted of a roadway of ample width, and that on either side there was a sidewalk space of about six feet. Those sidewalk spaces were protected on the outside by a railing extending from down along the street before the viaduct was reached, and were separated from the roadway on the viaduct by a part of the structural iron work or large girder rising out of the floorway of the bridge or viaduct a height of more than two feet. This extended the full length of the bridge and at either end, on each side, stood perpendicular. It is thus, seen that one driving a vehicle along the street approaching the viaduct must avoid this structure so dividing the sidewalk or footbridge as it is called in the record.

Plaintiff, with a companion, who was driving, were in a buggy passing along the street approaching the viaduct, in the nighttime. They drove the buggy so as to collide with the end of the girder and balustrade described. She was thrown out and injured. She admitted, in giving evidence in her own behalf, that she knew' of the construction of the viaduct and of the girder dividing the sidewalk or footbridge from the main roadway, but said she did not know it was so far (six feet) out in the viaduct. We regard her statement, in the circumstances disclosed by the record, as showing that she knew as much as anyone could know without taking specific measurement, all about the position of the girder so separating the roadway from the footway. And for that reason the court did not improperly refuse her instruction numbered 5, which is affirmatively based upon “the absence of any knowledge upon her part of the position and location of said girder” and the obstruction made thereby. The instruction was in the face of the evidence.

Instruction numbered 6 was not improperly refused for it submits an hypothesis not authorized by the petition. The petition charges that no lights were burning at the time of the injury. The instruction submits that question and then proceeds to submit that if there were street lights burning yet “if the viaduct was not reasonably safe for travel at said time,” defendant was liable.

But, aside from the foregoing considerations, which result in sustaining the verdict for defendant, and reversing the order for new trial, it is manifest that the plaintiff was without legal standing for her complaint. In general terms it may be said that a city cannot rightfully maintain or permit to be maintained obstructions in a street. Yet that rule does not obtain concerning that class of permanent obstructions which are incident to public necessities authorized by law, such as telegraph or telephone poles, supports for viaducts passing over streets, etc., etc. This principle was brought out and considered by the Supreme Court in an opinion by Marshall, J., in Siebert v. Railroad, 188 Mo. 657, a case which may well .be likened to the one at bar.

We do not regard other causes assigned outside the reasons stated by the trial court, as sufficient to sustain the order.

The judgment will be reversed and the cause remanded with directions to enter judgment on" the verdict.

All concur.  