Housh, J.
This is an action for damages for personal injury received by the plaintiff from the falling of a bank of earth upon him in Clay street, in the city of St. Louis. The bank of earth was created by excavation and removal of sand and dirt by the Yulcan Iron Works, during a period of several years, of which the city had notice.
The plaintiff’s testimony tended to show that Clay street was one of the principal streets in that quarter of the city in which it was located, that it was used for travel, and was necessary for the convenience of the public; that on the day before the plaintiff was injured, the servants of the Yulcan Iron Works dug into the bank and removed sand and dirt therefrom, and left the bank undermined and in such condition that it was thereby caused to fall; that at the time of the injury the plaintiff, being then eleven *404years of age, was on an errand for his mother, and stopped’, to watch some boys who were playing at the bank, and while looking on, but not participating in the play, the-bank fell, killing one boy and seriously injuring the plaintiff*. The testimony for the defendants tended to show that the-bank was caused to fall by the act of the plaintiff* and other boys, who were at play, digging into it; that the plaintiff was not at the time using the street for the purpose of travel, but as a play ground and for purposes of amusement; that the street was in its natural condition and had never been graded, improved or repaired, and could not be used for vehicles, and that plaintiff* had long-lived in the vicinity of the bank, knew its condition and had -been in the habit of playing there. There was a verdict and judgment for both defendants.
1. municipal cobfyeATstreete:ef(ini fancy‘ The court of appeals reversed the judgment of the-circuit court, for error committed in giving the following instruction : “ If the jury believe from the evidence that plaintiff*, Donoho, at the time-he received the injuries complained of, was; in company with other boys using Olay street for the purpose of playing or amusing themselves thereon and not for the purpose of passing over or traveling on said street, then, notwithstanding he was injured, he cannot recover against the city of St. Louis.” The opinion of the court of appeals is reported in 7 Mo. App. 447" court="Mo. Ct. App." date_filed="1879-07-01" href="https://app.midpage.ai/document/donoho-v-vulcan-iron-works-8258281?utm_source=webapp" opinion_id="8258281">7 Mo. App. 447, and for the reasons there given we are of opinion that its judgment should be affirmed.
2. infancy: con-tributary negligence. We are further of opinion that the following instruction, asked by the plaintiff, should have been given: “ The court instructs the jury that, in considering-J 17 , the question as to whether or not plaintiff contributed by his own act to cause the injury to himself mentioned in the petition, they should take into consideration his age and discretion, and if the jury find from the evidence that plaintiff' was of the age of eleven years, and did not possess the discretion of an adult or grown person-*405at the time of the injury, then the jury should consider these facts in determining whether or not plaintiff was guilty of contributory negligence at the time of said injury that contributed to cause said injury.” The instruction was a proper and necessary qualification of the following instruction which'was given at the request of the defendant, the "Vulcan Iron Works: “ Even though the jury should find from the evidence that the employes of the Vulcan Iron Works left the bank in question in a dangerous or insecure condition, and should further find, that while in that condition, the plaintiff and his companions ■dug into and weakened its support, and thereby contributed to the immediate cause of its fall, the plaintiff cannot recover.”
s. st. louis: .nanegligence': proper parties uncler the charter of 1876 As the ease is to be retried it may be well to observe, that we do not construe the, 9th section of article 16 of the'city charter of St. Louis, adopted in 1876, as it appears to be construed by the counsel * J- J for the plaintiff' and for the defendant, the Vulcan Iron Works. We understand this section to mean, that when the city is liable to,an action on account of the negligence or wrongful act of another, who is also liable to an action for the same injury, the city and such other person must be joined as defendants, and there can be no judgment against the city, unless judgment be also rendered against such other person, who is also liable. But if a person be joined as defendant with the city, who is found upon a trial not to be liable to an action by the plaintiff', this will not prevent a recovery against the city, if the case be one in which an action could have been maintained against the city alone, before the adoption of the section referred to. The purpose of this section doubtless is to prevent circuity of action and a multiplicity of suits and their attendant evils, in those cases where the .city can be' held liable for the wrongful or negligent acts .of others who are primarily liable, and who would in turn *406be liable over to the city. The judgment of the court of appeals will be affirmed, and the cause remanded to the-, circuit court for a new trial.
The other judges concur..