248 Mo. 98 | Mo. | 1913
This is a second appeal. See Benton v. St. Louis, 217 Mo. 687, for the first, where a full statement may be found.
Recovery is sought on the theory that on a street of defendant there was a wooden sidewalk; that close thereto in the street and extending under the sidewalk was a large, deep excavation,' a sink-hole; that there was no rail on the sidewalk protecting travelers; that the sidewalk boards were loose and insecure, etc.; all of which facts were known to defendant or might have
When the ease was here before, we held that the evidence made a case for the jury, provided the place was a public street. That contributory negligence could not be imputed to the infant as a matter of law. Moreover, that there was evidence from which the jury could have determined the controverted question of street or no street against defendant.
A nonsuit having been forced at the first trial because of the announced determination of the court to give an instruction in the nature of a demurrer to the evidence, we ruled that such demurrer would not lie.
When the case went down, defendant filed an amended answer. (Note: Up to that time it had stood on a general denial). Its amended answer was (1) a general denial, (2) a plea of contributory negligence on the part of the infant, and (3) the contributory negligence of the custodian of the infant, to-wit, the mother, Eva A., one of plaintiffs.
Verdict and judgment for plaintiffs for. $2250. Defendant appeals.
The general rule being that on second appeal, where the facts are the same and the pleadings relating to those facts are the same, the first decision bécomes the law of the case on points ruled (except in excep
First-. In giving plaintiffs’ first instruction, because: Although the sidewalk or highway may have been in defective condition, yet if the defect or condition arose from concurrent causes the city is not liable unless it had notice of both causes in time to supply a remedy.
Second: In refusing defendant’s second instruction, because: The city was only required to use reasonable care in making its sidewalks safe for pedestrians' and its liability is not extended to an anticipation of unusual or extraordinary circumstances.
Third: In refusing defendant’s fifth instruction, because: Though a defect exist in a street the defective condition must appear to be dangerous before an action lies — this in the light of all the circumstances.
The facts- being substantially the same on the second appeal as on the first and plaintiffs being entitled to the verdict of a jury, with the question of the contributory negligence of the infant set at rest in the first case, and, having got such verdict, we may state in passing that the question of the contributory negligence in the infant’s mother and the question of street or no street were well submitted and found adversely to defendant. So much is impliedly confessed. ■
I. Plaintiffs ’ first instruction, being long, will not be reproduced. The part pertinent to our inquiry runs:
*104 “ . . . and if you further believe from the evidence that the said street and sidewalk were in a dangerous and defective condition, which was liable to occasion injury to persons in the usual and ordinary use of said street, and that this condition was known to defendant, or that said street had remained in such condition for a sufficient length of time before the death of the said George Benton to enable the officers and agents of the defendant, by the exercise of ordinary care, to discover said dangerous and defective condition and to remedy the same before said death, and if you further believe that the death of said George Benton was caused by the said dangerous and defective condition of said street and sidewalk; and if you further .believe that the said George Benton was then and there in the exercise of the same care as is customarily exercised by persons' of ordinary prudence of similar age and under like circumstances; then, if you so find the facts to be, your verdict must be for the plaintiffs.”
In aid of the consideration of the criticism leveled by appellant at this instruction we reproduce the pertinent part of a photographic picture of the locus, put in evidence by defendant, thus:
In the Fehlhauer case plaintiff at a given time in the night fell into an open door in a sidewalk leading to a basement. A minute or so before she, so she said,
“Nevertheless it is contended that the city, by the exercise of reasonable care, could and ought to have known that the cellar door was open on this occasion from the manner in which it had been habitually used for a long time prior to the accident. Hnfortunately for this contention, there is not a particle of evidence tending to prove that this cellar door was ever open at the time of night when this accident happened, or that it was ever opened before by the persons in the manner or for the purpose for which it was opened on this occasion.” Again, further on (p. 651): “If the plaintiff in the exercise of ordinary care had fallen into the opening while the sidewalk was being subjected to this habitual use, then there might have been some support for the contention that the use itself afforded some reason to the city authorities for expecting such*108 a casualty, and the authorities cited in support of this contention might have some point.”
As said, the claim of appellant is that the city did not actually know that the particular storm had actually filled that particular hole with that particular water. The thought being that because the testimony was that the rain had fallen shortly before the child was drowned, therefore the city was without notice and had no chance to remedy the specific defect that caused death, viz., water in the sink-hole. But is not that contention more specious than sound? Did not the city know that heavy rains might be expected to •fall in the latitude of St. Louis? Did not it know that surface water, following the immutable law of nature, ran down hill? Know that the manhole was insuffi
The philosophy of the matter has been nowhere more happily stated than by Sir Frederick: Pollock [Webb’s P’ollock on Torts (En. Am. Ed.), p. 45 et se<p], thus:
Reasonable Man. “Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that.are barely possible. He will order his precaution by tbe measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability. Arid the statement proposed, though not positively laid*110 down, in Greenland v. Chaplin (5 Ex. 248), namely, ‘that a person is expected to anticipate and guard against' all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur,’ appears to contain the only rule tenable on principle where the liability is. founded solely on negligence. ‘Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated,’ may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account.”
That pronouncement is the doctrine of this court. [Dean v. Railroad, 199 Mo. l. c. 409; American Brewing Ass’n v. Talbot, 141 Mo. l. c. 684, et seq.]
In the light of those ipiles and. authorities, when applied to the facts of this case, the instruction challenged must be held well enough and the criticism of it unsound. The point is ruled against appellant.
II. Appellant complains of the refusal of the following instruction:
“You are further instructed that the city is under no duty to provide against injuries of any character*111 arising from and directly dne to unusual or extraordinary rains; and if the jury find and believe from the evidence that the death of plaintiff’s, son was directly caused by an unusual or extraordinary rain, and would not have happened but for such rain, then your verdict must be for the defendant. ’ ’
The assignment of error is not well taken.
III. The last proposition advanced by appellant is that it was error to refuse the following instruction:
“The court instructs the jury that the.city cannot be held liable under any circumstances in this ease, un*112 less it is shown by the evidence that a person of ordinary care, standing in the city’s place, would have considered the sidewalk dangerous and unsafe prior to the 4th day of May, 1905.”
“The court instructs the jury that the city cannot be held liable for failing to erect a railing along the sidewalk, unless they find and believe from the evidence that a person of ordinary care and prudence, in the city’s place, would have erected such railing prior to the fourth day of May, 1905.”
Those two instructions, if not idem sonans, are certainly idem sigwificans. (The scholar who pursues with eagerness the subtleties of legal reasoning may profitably consult the brief pro se of Michael Sunday in Sunday v. State, 14 Mo. *417-18, for an edifying discussion, only faintly in point.) There could be no error in refusing to tell the jury the same thing twice. In writing instructions the finger of the judge is like that of fate in the figure of Omar Khayyam, anent progression, viz.:
“The Moving Finger writes; and having writ Moves on.”
On the whole record the judgment was for the right party and stands for affirmance.
Let it be affirmed. It is so ordered.