7 Mo. App. 358 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The plaintiff sued the present appellants, and also the City of St. Louis, to recover damages for an injury resulting from his falling upon the ice which had formed near a crossing on the street in that city. This ice, it was alleged, was produced by the freezing of water which, through the carelessness of the appellants, who, as street-sprinklers, used a waterspout in the neighborhood, had been allowed to escape and
It is objected that the ordinance of the city should not have been read, and that such ordinance could not give a right of action for a neglect of duty not existing by law. But the court below gave no instruction to the effect that a breach of the ordinance was a ground of recovery, and that part of the ordinance which was read provides merely that a failure in compliance shall cause a forfeiture of the license. The part introduced was competent, as against the appellants, to show a duty imposed upon them of putting in their own attachments and keeping them in order. This duty they undertook to perform, but, as the jury have found, neglected.
The offer to prove a so-called custom among street-sprinklers in St. Louis, that at the close of the season for sprinkling the streets, when the water was supposed to be
Complaint is made that the court below, at the request of the city, instructed that the jury could not find a verdict against the city unless they also found a verdict for the like amount against the appellants ; but that if the jury, under the instruction and evidence, determined to return a verdict against the appellants, it did not also follow that they must find against the city. This instruction was based upon sect. 9 of art. 16 of the present city charter, which corresponds with art. 12 of sect. 13 of the charter of 1870. Schweickhardt v. City of St. Louis, 2 Mo. App. 581. The objection to the giving of this instruction is founded on the position that there was no evidence of negligence on the appellants’ part, a position wholly untenable. It is true that there is evidence tending to show negligence on the part of the city, but upon this question the jury have passed. The jury were instructed that if the slippery condition of the crossing at the point where the plaintiff fell was caused by the negligence of the appellants, and not by that of the city, their verdict should be for the city. In this there was no error, nor have the appellants poiuted out any
The exclusion of the tax-payers from the jury was error (O’Brien v. Vulcan Iron-Works, Mo. App.), but no error of which the appellants can complain, or which is a ground of reversal.
The appellants’ first and second instructions were properly refused. The question was not here one of ordinary care, or any other degree of diligence on the part of the appellants, but as to negligence causing the injury to the plaintiff.
No error is shown, and the judgment of the court below will be affirmed.