91 Mo. App. 489 | Mo. Ct. App. | 1902
— This is an action to recover damages for personal injuries. The allegations of the petition were to this effect:
There was a trial in court below where it was disclosed by the evidence that the hydrant referred to in the petition was placed in said street by the defendant water company under authority conferred by an ordinance of the defendant city. The street at the time said hydrant was placed therein was not graded, and the hydrant stood about five feet above the then surface of the street, at the point where it was located. A few months before the plaintiff was hurt, the defendant city brought the street to grade at the place where said hydrant was located by filling it up there several feet, so that the hydrant thereafter stood only about twenty-five inches above the surface which was quite level at that place.
The street was eighty feet wide and along the center of it there had been laid the single track of an electric railroad. Posts were set at about one hundred and eighty feet apart on either side of the street to support a trolly wire. They were set out into the street at various distances from the property line varying from eleven to thirteen feet. The hydrant stood eleven feet four inches into the street from the property line. There were no sidewalks on either side of the street in the
At about half past seven in the evening of the latter part of the month of January the plaintiff,, while driving his wagon along said street, met a street railway car which caused his horses to shy and deflect in their course some eight or ten feet, from the direct line on which they were being driven. The plaintiff was setting on the coupling-pole just behind where it is attached to the hounds, with his feet hanging down in front of the beam. By this deflection the wagon was made to straddle the hydrant and when the front axle collided with it the plaintiff called “whoa” to his horses; but they did not stop until after the plaintiff’s leg had been caught between the brake-beam and the top of the hydrant, and so injured. The night was very dark and plaintiff did not see or know of the location of the hydrant at the time his horses shied. Before the street was graded there were posts set around the hydrant so as to keep vehicles from coming in contact with it, but at the time the plaintiff was hurt, it was not lighted or in any way guarded.
The defendant city had constructive if not actual notice of the location and condition of the hydrant. The plaintiff knew that there was a hydrant in that part of the street but owing to the prevailing darkness he was unable to tell just where it was located. There was no question but that the plaintiff’s injuries were of a serious nature.
We have thus very fully stated the facts for the reason that the defendant city, by an instruction in the nature of a demurrer to the evidence, challenged the right of the plaintiff to a submission of the ease to the jury; and to the considera
But it has the power to authorize the appropriation of its streets to all such uses as are conducive to the public good and do not interfere with the complete and unrestricted use of such streets as highways. It may therefore authorize the erection in its streets of telephone, telegraph, electric light or electric street railway poles, the construction of sewers, laying of water pipes and the erection of hydrants thereon. Ferrenback v. Tuner, 86 Mo. 416, and eases there cited; Telegraph Co. v. Guernsey, 46 Mo. App. 121.
It is a duty which a municipal corporation owes to the public to keep its streets so that they will be reasonably safe for travel by day and night. But it is not the insurer of the safety of persons passing along its streets. Warren v. Independence, 153 Mo. 593; Baustain v. Young, 152 Mo. 317; Carvin v. St. Louis, 151 Mo. 334; Franke v. St. Louis, 110 Mo. 516; Carrington v. St. Louis, 89 Mo. 213. And where it grades and opens up a street for travel, it is bound to keep it in a reasonably safe condition. Kassman v. St. Louis, 153 Mo. 293.
As in the case of Wallinger v. Kansas City, 71 Mo. App. 354, the question is, whether or not the city negligently permitted a dangerous obstruction to remain in ono of its public streets and was the plaintiff injured thereby ? It matters not how or by what means the obstruction got there, whether through the improper acts of the defendant water company or
It has been, in effect, held that when a hydrant has been improperly placed in a street it may constitute an obstruction or a defect sufficient to render the city liable to the one who’ is injured thereby without his fault. Wilkins v. Rutland, 61 Vermont 336; King v. Oshkosh, 75 Wis. 517; Scranton v. Catterson, 94 Pa. St. 202. It seems that the water company was authorized by an ordinance of the defendant city to lay its water pipes along the street on which the injury happened and to erect hydrants thereon, but if in pursuance of that authority it erected the hydrant in question, and that such hydrant was so located in the street and was of such a size and length as to constitute a.dangerous obstruction to travel, and the defendant city, with knowledge of its existence permitted it to remain, and that in consequence thereof the plaintiff was injured without his fault he might recover. And the fact that the hydrant' was erected by the water works company under a license for that purpose, does not relieve the defendant of liability after it had notice that the street was rendered thereby unsafe and dangerous. After the defendant had notice that the street was rendered unsafe and dangerous by the erection of the water pipe by the water company, its liability for injuries occasioned thereby was the same as if such hydrant had been erected by its own servants. Elliott on Streets, sec. 634; Russell v. Columbia, 74 Mo. 480; Ray v. City, 70 Mo. App. 252.
The public had the right to the use of the entire width of the street. There was no part of it appropriated to sidewalks for the use of pedestrians. Vehicles were habitually driven by the public over every part of it. They had the same right to use that part of it lying between the hydrant and the prop
And we can not say, as a matter of law, that because the plaintiff was driving his wagon along the street after night with his legs hanging down and while so doing was hurt in the manner which we have stated to be disclosed by the evidence, that he was guilty of contributory negligence. It has been held that when a horse of ordinary gentleness, as here, merely shies or swerves to one side so that the driver does not lose control over him and an injury is caused without his fault in coming in contact with an obstacle or defect in the street, the city is liable. Aldrath v. Gorham, 77 Me. 287; Baltimore v, Batman, 68 Md. 389; Stone v. Hubbardton, 100 Mass. 49. The fact that the plaintiff knew of the location of the hydrant is of no consequence, since the night was so dark that he could not see it, nor is it certain if he had, the result would have been different If it had been lighter and posts and guard-rails of sufficient height had inclosed it, the horses when shying could probably not have drawn the wagon over it as they did. And though the plaintiff’s horses were ordinarily gentle, he would have been unable to have stopped them before his wagon passed over the hydrant even though he had seen it just before they shied and deflected. It does not appear that the injury which the plaintiff received was the result of his own fault. It seems clear from the evidence that the negligence of the defendant was the sole, direct and proximate cause of such injury.
The instructions viewed in their entirety, fairly submitted the case to the consideration of the jury. No error is perceived in the action of the court in respect to the giving or refusing of any of them.
The hydrant was built under contract with the city. By the provisions of the contract it was leased to the city as soon as constructed and accepted, and the water company had nothing further to do with it except to supply it with water. The mayor and council of the city has exclusive control and power over the streets (section 5508, Revised Statutes) to provide the city with water, and to establish hydrants in the streets for the extinguishment of fires and the convenience of the inhabitants. This necessarily involves the power to determine, as between the city and a contractor, the part of the street in which the -hydrant should be put and its construction. It is also provided in section 5692, that the mayor and council may,
The liability of the defendant city is based upon its negligence in allowing the obstructing hydrant to remain after actual or constructive notice of its location in the street as improved. Badgley v. St. Louis, ante; Franke v. St. Louis, 110 Mo. 519; Carrington v. St. Louis, 89 Mo. 208; Bonine v. Richmond, 75 Mo. 437.
It does not appear from the evidence that this is a case where the defendant waterworks company was primarily liable for the injury on account of any wrongful or negligent act on its part and the defendant, therefore, has no right to complain of the action of the court in sustaining the demurrer and rendering judgment against it alone.
It follows that the judgment must be affirmed.