(dissenting). — The following statement and opinion were filed in division number 1 of this court, before this cause was transferred to court in banc. I here file them as my conclusions of fact and of law, and, consequently, dissent from the opinion of the majority of this court. Brace, J., concurs in this dissent.
STATEMENT.
Action by plaintiff to recover damages for injuries received by him in consequence of falling into an excavation permitted by the city to be dug at the intersection of Grand avenue and Fifteenth street, by the Grand Avenue Railway Company; as to which company it seems the action was dismissed.
This excavation was some fifty feet long, extended the width of the sidewalk some fifteen feet, and was some nine or ten feet deep. It had been dug some time; was on the west side of Grand avenue which there runs north and south and occupied the sidewalk in front of the engine-house, and the railway company had placed its sheaves and other machinery to run its cables with, in the excavation. It was partially covered by a temporary board sidewalk about three feet wide, with good substantial railings on either side. . The remainder of the opening was, as claimed by the defendant and shown by the witnesses, securely barricaded, with large, heavy *489timbers laid on cement barrels set near the curb-line of the street, and at either end short timbers were nailed from the railing on the temporary sidewalk to the cement barrels ; and some three lanterns were hung on the barricades to warn travelers of the danger, and that these lanterns and barricades were in proper position the night of the accident, and but a short time before its occurrence.
Plaintiff was found about one o’clock at night in the excavation. The upper portion of the femur of the left leg was fractured. He was for eight or nine weeks at the city hospital, and confined to his bed for about three weeks longer at his house. At the time of the injury he was living at West Line, in Cass county, Missouri, but had formerly lived within a few feet of the place where he was injured. At the time of the trial he testified he was farming, supporting his family and doing his usual work. The left leg was an inch and one-eighth shorter than the right, and had shrunk somewhat, which injuries the physicians said would be permanent, and that he was not incapacitated from performing many kinds of labor. \
There was some enlargement of the thigh bone, which would probably be absorbed, but might be permanent. The jury found for plaintiff, and assessed his damages at $10,000. Upon motion for a new, trial, defendant complained that the verdict was so grossly and glaringly excessive, as to indicate prejudice and partiality on the part of the jury. The court found the verdict was grossly excessive, as complained by defendant, and announced that he would sustain the motion unless plaintiff would remit at least $5,000 of the damages so assessed. Plaintiff thereupon entered the remittitur, and the court overruled the motion.
The answer of the defendant city was a general denial, and also a plea of plaintiff’s contributory negligence.
*490The plaintiff, according to his story, about eight o’ clock at night, started down town and went to a place between Fifteenth and Sixteenth streets on Grand avenue and bought some picks and shovels, which he took to his spring wagon on Twentieth street, and then as it was raining put on his “rain coat,” and came back up town to get a drill, but on his way, about nine o’ clock, stopped at a saloon first on the northwest corner of Fifteenth street and Grand avenue, where he got a glass of beer, and, notwithstanding that it was raining, he dispensed with his “rain coat;” left it hanging in the saloon, first having supplied its pockets with two pints of whiskey, then he went across to a restaurant on the east side of Grand avenue four or five doors south of Fifteenth street where he ate supper, and then, although it was about ten o' cloeJc, he started across the street “ in a kind of a southwest direction to go to some secondhand store to find a drill” and though he “ was walking as smooth as he could,” “all at once he went down right in among those wheels and big castings.” He says: “I suppose I was down there about two hours. I hallooed several times, but I couldn’t make anybody hear; finally one police heard me and came' with a lantern,” etc.
He says further: “ The place I was going to get the drill was David’s place, right next to the cable house ; I didn’t find any barricades at all in front of this excavation that I fell in. I didn’t meet with.any obstruction before I fell into the hole. It was a very dark night; had been raining just a minute before. There was no red lights there. I was not intoxicated * * * I didn’t strike a single thing there when going into this hole ; I didn’t knock down anything ; I had not drunk no whiskey that day. There was a barricade at that part of the excavation in front of Joe and Charlie’s saloon, and one light there; that was all I saw. Joe and Charlie’s saloon is on the northwest corner of Fifteenth and Grand avenue-.”
*491Eymann, a saloon keeper, says: “Inoticed one ray of light on the east end of the hole near Fifteenth street. * -s * When I found Myers, he was lying between the sidewalk and the building; that is, between the stone wall built at the curb and the building proper. x x There was no electric lights at that corner at that time. There were guardrails along the sidewalk, along the building; didn’t examine carefully to see ■whether there were any guardrails or railing on the east side of the excavation ; I didn’t take notice ; it was too dark a night to see.”
Goode testified for plaintiff: “On the twenty-first of July, on or about that time, 1 was in Joe and Frank’s saloon, Fifteenth and Grand avenue. I heard a police whistle and went out across to the opposite corner to the cable-house. I heard a man shouting, and, looking down, saw him amongst the machinery. To the best of my knowledge, this was about midnight. This was a hole in front of the engine-house, with a rock wall in front, used for the cable machinery. I didn’t see any danger signals at the corner, and I walked straight from the saloon there, without any fence preventing me. The night was light enough for me to see a man down there, but I couldn’t tell his features, or anything about him. I did not help to take him out nor wait until he was taken out. I can’t say how far a mán could have stood away and seen that hole. I could see the rock wall; when I got to it I stood on it.”
Marden, another witness on the part of the plaintiff, testified: “It was very dark and stormy, and no lights that I could see in the block. I had noticed this hole some number of days before; it was a large hole in the sidewalk in front of the engine-house. At that time I didn’t see anything to prevent anybody from falling in. On the night I speak of, I noticed the hole in front of the cable-house; saw no lights there; I didn’t notice any barrier around the edge of the hole to *492prevent passers by from falling in. I didn’t look to see whether there was any or not; I paid no particular attention to it. I didn’t see any lantern or danger signal.”
This is the substance of the plaintiff’s evidence. That on behalf - of the defendant city will now be given : White, a night-watchman at said engine-house, testified: “During the month of July, 1887, I was stationed at the engine-house, southeast corner of Fifteenth and Grand avenue. I was there when the plaintiff was hurt by falling into the hole in front of the engine-house. I was inside of the engine-house when my attention was attracted by the blowing of a police whistle. The policeman’s name was Heydon. This was one o’clock in the morning. I went out on the sidewalk and down into the hole where the man was. He was standing in between two wheels, and was resting with his hands on the shaft of the wheels. These were large wheels placed horizontally. I tried to lift him out while Officer Heydon held one of the signal lanterns down in the hole. He stood on the sidewalk. With the assistance of two gentlemen, we got him out from the wheels, carried him out through the engine-house to Walnut street, put him in the patrol wagon, and he was taken away. I was the only night-watchman at the engine-house. At this time the street in front of the engine-house was all right; that is, there were no excavations in the street except the sidewalk part. The sidewalk was all open except a temporary bridge ; this bridge was about three feet in width and a barricade on each side of it about three feet high. The opening-extended the full width of the sidewalk and the length of the engine-house. It was about nine feet deep where Myers fell in. At the time he fell in it was barricaded all around; on the eastern or outer side of the excavation there was a barricade made by posts, cement barrels and heavy timbers placed about two feet and a half from the ground. The ends were barricaded the same *493way. There was no portion of the opening in the sidewalk that was not barricaded. On this night signal lights had been placed about the opening. I was out in front of the engine-house about fifteen minutes before I heard the police whistle. The barricades were then in proper position, and there were three signal lights around the opening ; one at each end of the barricade and one in the center. I put up a ladder for the gentleman to come down who helped take Myers out. Myers was about three feet from the stone wall when I found him, and about six feet from the north end of the opening. He had been drinking; I don’t know whether he was drunk or not, but a strong smell of whiskey came from his mouth. It was my duty as nightwatchman to look after everything about the place, see that the signal lights were out, and that the barricades were up in proper shape. I was in the second story of the engine-house when the man fell in, looking to see if everything was right. This sidewalk or bridge over the excavation was made of three beams laid lengthwise, and boards nailed over them crossways. The barricades on this were made by nailing uprights to the beams and then nailing three boards along the side of them. I don’t know how Myers got over the barricades; there was not room enough for him to get under them unless he crawled under them. I am not positive about three lights burning at the place I have spoken of. I am certain this was one o’clock Thursday morning. The street is about eighty feet wide beside the sidewalk.”
Heydon, sergeant of police, referred to by White, testified: “In July, 1887, I was roundsman number 4 of the Kansas City police force, on night duty. About one o’ clock that night I started to leave Officer Cassidy at Fifteenth and Walnut streets ; I was to meet him at one o’clock. As I passed in front of the engine-house I heard some one groan. I took a lantern from one of the barricades, and tried to look down an opening in *494the sidewalk in front of the engine-house. I went down to Fifteenth and Walnut, but couldn’t find Cassidy, and while returning to Fifteenth and Grand avenue I blew my whistle. I telephoned for the patrol wagon from Armory Hall. I went back to where the accident happened, and by that time the watchman and two or three other parties were there; the watchman went down in the hole first; the ladder was leaning against the wall, and I steadied it for him. The watchman and two other parties carried the man out in the rear of the engine-house on Walnut street, and Officer Fra.yser was there at the patrol wagon. There were no excavations in the street at this time ; it had been newly paved to the curb line ; there was an a ea-way in the sidewalk in f, ont of the engine building, about twelve or fifteen feet deep, and extended the full width of the sidewalk. There was a bridge for people to travel over this area-way, wide enough for two men to walk abreast, with railings on both sides of it, and barricades around the whole of the area. There was one piece of timber on the outer edge that had been knocked down at one end ; this was nearly over' the place where the plaintiff was lying. Myers was about three feet from the base of the retaining wall, at the curb line. There was a solid stone retaining wall at the curb line on the east side of the area. My memory is that the barricade was made of four-by-four’s laid on top of empty barrels. I think there were four barrels ; those the lights were on were about fifteen feet apart; the boards on the barrels were about fifteen feet long; it was the north end of the one nearest the corner that was knocked down; the ends of the excavation were barricaded with two short timbers each — one end, I think, nailed on the bridge and the other to the barrel. There were saloons on the northeast corner, the southeast corner and the northwest corner.”
Frayser, the policeman mentioned by Sergeant Hey don, testified: “I reside in Kansas City, Missouri; *495am a member of the police force, and was on the twenty-first of July, 1887. I was at that time on night duty; Fifteenth and Grand avenue was within my beat. Sergeant Joseph Hey don’s beat also covered that point. I was at Twelfth and Grand avenue about one o’clock on the night of the twenty-first of July. Sergeant blew his whistle at Fifteenth and Grand avenue. I started down there, but the patrol wagon overtook me, and I got in and rode to the rear of the engine-house on Walnut street. When we got there two men were carrying out the man that was hurt. I think they were - the night-watchman and a saloonkeeper; Officer Cassidy also was possibly with them ; they put the man in the wagon, and I went to the station with them. About three-quarters of an hour afterwards I returned to the corner of Fifteenth and Grand avenue ; I noticed the condition of the street at that time, in front of the engine-house ; the sidewalk was all open except a temporary sidewalk three feet wide, along in front of the house. There was a handrail on this about three feet high; there were barricades and railings all around the opening so that no portion of it was unprotected by barricades. These barricades were made of barrels set on end and pieces of timber on top of the barrels, and there were two lights oh the barrels. These lights were about six or eight feet apart on the outer edge next to the street, and where plaintiff went down was right in between the lights. I thought Myers had been drinking ; I could smell the liquor on him, and his actions indicated it. I did not know Myers before this accident. I caught hold of his arm and helped to put him on the stretcher; I rode in the wagon with him to the station; he acted kind of stupid; didn’t do anything but lay there. It was part of my duty as night-watchman in the employ of the city to see that all excavations in the street on my beat were properly lighted and guarded. I had passed the cable engine-house on Grand avenue a few minutes before the plaintiff fell in, *496and the barricades and lights were np around the opening, the same as they were when I noticed them after, Myers fell in.”
Cassidy, another member of the police force, testified: “Was called to Fifteenth and Grand avenue about one o’clock at night on the twenty-first of July, on account of a man falling into an opening in the sidewalk in front of the engine-house. I went down into the area-way and assisted in carrying him out. After he was taken out and carried away, I made an examination of the opening in which he fell. I found there were barricades and danger signals around it, and that there was no part of it that was not barricaded. When I went down into the excavation to help him out, I took down one end of the barricade on the outer edge of the excavation, just where I first saw him. According to his breath, he had been drinking considerable before he fell. I was between the alley and Walnut street, on Fifteenth street, when I heard Officer Heydon’s whistle. I went up to him at Fifteenth and Grand avenue. I couldn’t say how many lights there were at that time ; though there were lights there ; there were lanterns put there for danger signals; I couldn’t say how many or what color they were.”
Thomas, superintendent of construction of the Grand Avenue Cable Railway Company, and in the employ of that company, . and not one of the contractors, testified: “I was at Fifteenth and Grand Avenue three or four times a day, sometimes a dozen times a day. I remember of Myers getting hurt. The street proper at that time was all right, the paving had been relaid. There was an area-way about twelve feet deep in the sidewalk, extending the width of the sidewalk east and west and the width of the building north and south. The temporary sidewalk extended over this about four feet wide, with railings on both sides. There was no portion of this area-way open that was not barricaded up. This drawing I now look at *497correctly shows the location of the engine-house, the area-way and the sidewalk, the temporary sidewalk, the barricades and the retaining wall. The barricades had been up on the east side of this excavation, at the time of the accident, about a week or two, I think.”
Southward, the assistant superintendent, but material clerk of that company at the time of the accident, who ha i. occasion during the month of J uly to be at the engine-house every day and occasionally at night, and had been at the engine-house several times the day preceding the night when the plaintiff fell, gave similar testimony as to the excavation being well barricaded.
Frey, auditor of the company and paymaster during the month of the accident, had occasion to be at' the engine-house frequently, and was accustomed to stop there on his way home to see how the work was progressing, testified in a similar way regarding the substantial character of the barricades, and on the day before the night when the accident happened, and he' further testified: “I was at the engine-house that day, not later than seven o’clock; at that time there was no portion of this area-way that was unbarricaded.
At the conclusion of the plaintiff’s evidence, the defendant city asked an instruction in the nature of a demurrer to the evidence, which was refused.
OPINION.
It will be observed that plaintiff does not deny that there were lights at the locality where he fell; he only denies that there were “red lights” there.
He denies that there were any obstructions in his way, when he fell; but his witness Eymann admits that there was one light at the locality, and that he didn’t examine carefully to see whether there were any guardrails on the east side of the excavation. Gfoode is the only witness who supports the plaintiff by affirmative testimony as to lack oí Damcaa.es; bur, though he *498says he didn’t see any danger signals at the corner, yet he says that it was light enough for him to see a man was down in the excavation, and light enough for him to see the retaining wall, and that he stood on it when he got there.
The testimony of Marden is altogether of a negative character, saw no lights there, didn’t notice any barrier, paid no particular attention to it.
But, on the part of the defendant city, there are at least seven witnesses who give affirmative and positive testimony as to the existence of suitable barricades on the night of the accident, and there are five of those witnesses who give equally positive and affirmative testimony as to the existence of lights at that time; and most of these were men whose official or quasi official duties required of them to notice if the excavation in question was properly lighted and barricaded.
That the excavation was lighted is virtually conceded by the plaintiff, and that there was light enough to see the retaining wall over which the plaintiff fell, and to see the plaintiff after he fell, is directly admitted by Goode. There is, therefore, nothing but negative testimony as to there being no light; and the testimony of but two witnesses as to there being no barricades; one of whom, according to much of the testimony and according to his own admissions, was not in a very appreciative condition, either as to whether it was raining or as to whether there were obstructions in his way. In such_ circumstances, the testimony in favor of the locality having been properly lighted and protected must be regarded as simply overwhelming ; and this upon the principles of affirmative testimony being more valuable than negative, and upon the further principle of testimony being more valuable where the attention of the affirmative witness has been particularly ''•filed to the subject by the nature of his duties official and otherwise. Starkie Ev. [9 Ed.] *499867-8; Whart. Crim. Ev. [9 Ed.] sec. 382; 1 Thompson, Neg. 431; Best’s Prin. Ev. ( Chamberlayne) 280.
The fact that the jury in the face of so much affirmative, positive and explicit testimony, testimony of witnesses whose attention was especially called by their •duties to the condition of the lights and barricades, found a verdict for the plaintiff in the sum of $10,000, .goes but to commend the action of the circuit court in •condemning the damages awarded by that verdict as grossly excessive, and as impliedly the result of passion and prejudice.
II. But, in our opinion, the circuit court should "have rejected the verdict altogether, and, for these reasons: Nothing short of negligence could charge the defendant city; the extent of its care" in the performance •of its duties was ordinary care. It was not the general warrantor of the safe condition of its streets. It is necessary to show negligence on the part of the city’s officers, and to show it affirmatively before any liability will be created. The existence of a defect or obstruction in the street which causes the injury is insufficient. The use of ordinary care by the city to have prevented or •cured the defect will prevent liability from attaching so that it is necessary to go a step further and show the •corporation to be in some way responsible for the defect ■either by reason of having directly caused it or assented to its creation by another, or with actual or implied notice of its existence, permitted it to remain. 1 Shearman & Redfield, Neg. [4 Ed.] sec. 290, and cases cited.
None of these conditions of liability exist in "the facts aforesaid disclosed by this record. If we take it that the excavation was securely lighted and guarded as the great preponderance of the evidence tends so ■clearly and convincingly to .show, then manifestly the city, having -been guilty of no negligence, has incurred no liability.
*500If, on the other hand, we take it that the excavation was nniighted and unguarded, then this testimony, if believed in its fullest extent, is wholly insufficient inasmuch as it does not appear when the negligent situation began. Taking either horn of the dilemma, the judgment should be reversed.