110 Mo. 516 | Mo. | 1892
Lead Opinion
Tbe plaintiff as tbe sole surviving ■parent brings this action for damages caused by tbe killing of her unmarried minor son, Frederick W. Franke, on tbe twenty-ninth of February, 1888, by tbe falbng of a stone from tbe front wall of tbe building number 407, North Fourth street, in tbe city of St.
Fourth street was the principal retail thoroughfare of the city. On February 5, 1888, this budding and its contents were burned. The front wall was built immediately on the line of the sidewalk. On the day in question, February 29, 1888, three weeks after the fire, plaintiff’s son, then fifteen years old and unmarried, was walking north on Fourth street on an errand for his employer, and when just in front of the damaged wall, a stone about six feet long, thirty inches wide, and about four inches thick, fell out of the upper part of the wall between the fourth story windows, and injured the boy. While no one actually saw the stone come in contact with him, it is clear from all the evidence in the case, and from the character of the injury to the boy’s head, as described by the medical witnesses, that the stone must have struck him a glancing blow. A number of people saw him in the act of falling, contemporaneously with the crash of the stone, and carried him to the nearest drugstore. He was there revived, and immediately sent home; he complained of pains in his head, and, as was drawn out of the plaintiff, and Dr. Bock, on cross-examination by defendant’s counsel, stated, that a falling stone from a building on Fourth street had struck him. As his condition grew worse the following two days, a surgeon was called in by the attending physician, and an operation was performed on his .skull in the hope of saving his life. The surgeon, Dr. Bernays, testified that when he had removed the scalp he was surprised at the horrible fracture of the skull that was presented j the fracture extended clear across;
The testimony showed that, at the time of his death, plaintiff’s son was a strong, healthy boy, earning $4 weekly, as an errand boy.
Under the instructions of the court the jury returned a verdict in favor of defendant Hildreth, and against defendants Webb and the city of St. Louis, for $1,846.46, and both .defendants appealed.
OPINION.
The contention of both the appellants, that the circuit court erroneously sustained the demurrer to the •evidence by the defendant Hildreth, is wholly without merit,. whatever significance is given to section 9 of article 16 of the scheme and charter of St. Louis.
The mere fact, that by the sufferance of Mrs. Webb his engine and boiler remained in the cellar, did not .give him such a possession of that building as to render him liable for not maintaining it in a safe condition. His lease was terminated, his rent was paid, and neither he, nor his employes, were in possession.
II. Nor can the non-joinder of the contractor, Lynds, as a defendant avail either of these appellants. If they desired to get the opinion of the court as to the necessity of making said contractor a party, it was clearly incumbent upon them to do so, either by demurrer or answer, and, having failed to do either, the •objection was waived. R. S., sec. 2047. And, moreover, it is not made a ground for new trial, by either of these defendants.
III. Whatever the rule may be in other states, the law in this state requires that cities and towns shall keep their streets and sidewalks in a condition reasonably safe for the public, and they are liable in damages
“Whenever it is discovered by the officers .of the-city that a structure exists in the sides of one of its-streets, so unsafe as to endanger the lives or persons of those passing over and along the street, the duty either to remove it or to make it safe and secure at once arises, and this duty cannot be shifted from the city to another so-as to relieve it from liability for injuries occasioned by it.” Grogan v. Foundry Co., 87 Mo. 321; Kiley v. City of Kansas, 87 Mo. 103.
“The ground of the action is either positive misfeasance on the part of the corporation, its officers or servants, or by others under its authority in doing acts which cause the streets to be out of repair, in which case, no other notice to the corporation of the condition of the street is essential to its liability, or the ground of' the action is the neglect of the corporation to put the streets in repair, or to remove 'obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, in which cases notice of the condition of the street, or what is equivalent to notice, is necessary, as will presently be stated, to give to the person injured a right of action against the corporation.” 2 Dillon on Municipal Corporations, sec. 1020.
It is not possible to state a rule of notice that would' apply to every case in advance. Each case must, depend upon its own peculiar facts and circumstances.
When the dangerous obstruction or abutting building is in a small village, or on a retired or secluded street, -the inattention of the town or city authorities for several weeks might not amount, of itself, to negligence, and, on the other hand, if a dangerous over-hanging wall,, or unprotected opening upon a sidewalk, upon one of the principal thoroughfares of a great city, was allowed to stand even a day without barricades or danger.
In 2 Shearman & Redfield on Negligence, section 369, it is said: “Eor practical purposes, the opportunity of knowing, in such cases, must stand for actual knowledge; and, therefore, where open defects in a highway have existed for a considerable time, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. Such notice may be imputed also where a defect, though temporary, has been of frequent occurrence during a long period; for example, where an individual has habitually used an unguarded cellar door in the sidewalk ; but, on the other hand, it is not to be imputed where a lawful structure has been proved to be exceptionally safe during a long period. It is evident that notice should not be so readily presumed from the continuance of latent defects as in the case of such as are open; while others, like an unguarded precipice at the side of a street, or a decayed wall hmging over a sidewalk, are so dangerous as to challenge immediate attention; so that the jury may be warranted in finding a very short continuance of these notorious defects to constitute a sufficient notice of them.”
In this case, the trial court instructed the jury in accordance with the law as above stated, in regard to
It is now urged in this court that the circuit court should have instructed the jury that plaintiff could not recover on the evidence in this case, against either the city or Mrs. Webb. It seems clear to us that the city occupies a position materially different from Mrs. Webb. Was there sufficient proof to take the case to the jury as to the city?
The plaintiff proved that a building four stories high, fronting on Fourth street in the city of St. Louis, had burned on the fifth day of February, 1888. The interior of the building with its stock of merchandise was completely destroyed, the rear and side walls were partly destroyed, the windows and window-sills in the front wall were burnt and charred. The trimming or facing of this front wall consisted partly of upright slabs of stone, six feet long, two and one-half or three feet wide and four inches thick, fastened to the wall by iron bolts or anchors.
Daniel Walsh, a police officer in the employment of the city, testified that this'.building was on his beat; that he observed it daily from the fire till the plaintiff was hurt on the twenty-ninth of February, twenty-four days after the fire.
Hugo Muench, a member of the St. Louis bar, testified: “I remember seeing these premises after the fire; I don’t know when the fire occurred, but I saw them after the fire in a dismantled condition. Men were at work taking the debris out of the building. As I was going up on the east side of the street, I noticed one large rock or stone, which formed part of the front
It was shown by various witnesses that the plaintiff’s son, a lad of fifteen years, was passing along the sidewalk when one of these upright stones fell and struck him, fracturing his skull, from which he died on the third or fourth day. No guards were up, or signals Of any kind. He was earning $4 a week, and was a strong, robust boy. He always paid his earnings to his mother, who is a widow. The court having refused the demurrer to the evidence, the evidence disclosed the city had an inspector of buildings, who inspected this building some four different times after the fire. The last time a week before the accident to plaintiff’s son. It was apparently safe. He did not see the wall the day of the accident.
For the defense, Benjamin Lynds testified that he hiade a careful inspection of this building on twenty-eighth of February, and discovered nothing wrong about it.
The rule is firmly established in this state that a demurrer to the evidence admits every fact which the jurors may infer, if the evidence were before them, and should be sustained only when the evidence, thus considered, fails to make proof of some essential averment. Rine v. Railroad, 100 Mo. 228; Noeninger v. Vogt, 88 Mo. 592, and cases cited; Meyers v. Kansas City, 108 Mo. 480.
Can it be said the jury were not at liberty to believe Mr. Muench’s testimony 1 They saw him; living
But it is said Lynds contradicts Muench. It was for the jury to determine whether they would believ© Lynds or Muench. It is evident they believed Muench, It is the peculiar and appropriate function of the jury to pass upon contradictory evidence. With Muench^ testimony in the case it is evident that was not a latent defect. On the contrary, it was open and obvious, and it must follow, from the law, that if so it was th<l plain duty of the city officers, and the owners of this building, or those in possession at the time to see it, and remove or secure this stone.
IY. As to Mrs. Webb, however, the law did not require the plaintiff to prove actual notice. “It is tha duty of the owner of a building, under his own control •and in his own occupation, to keep it in such safe com dition that travelers on the highway shall not suffe? injury.;; When the dangerous condition of the wall wag shown, and the injury resulting from it, a prima fade case was made as to the owner in the possession. Krohn v. Brock, 144 Mass. 516; Gray v. Gaslight Co., 114 Mass. 149; Barnes v. Beirne, 38 La. Am. 280; Mullen v. St. John, 57 N. Y. 567; Kearney v. Railroad, L. R. 5 Q. B. 411; Exchequer Chamber, 6 Q. B. 759;
The court very carefully instructed the jury in the fourteenth instruction given for Mrs. Webb “that they ■cannot hold the defendant, Mrs. Webb, responsible for the injury in this case simply because she was the owner ■of the leasehold when the wall fell; but in order to hold her responsible they must further find that she had the possession or control of the premises at the time of the accident.” It was left to the jury to find whether she was in possession or not. The evidence was sufficient to justify the jury in saying she was. Her tenant Hildrethpaidhisrentandobtainedhis acquittance on the sixth day of February. The wrecking company cleaned up the debris for the insurance companies, and finished about the twenty-fifth.
Lynds says he didn’t take charge until about March 15 to rebuild. It was competent for the jury to find under the evidence that as the owner of the leasehold she was in possession, until some one else took the actual possession.
Y. At the instance of Mrs. Webb’s attorneys, the court gave a 'correct instruction as to the measure of damages, as follows: “13 The jury are instructed that if they find a verdict for the plaintiff they are to assess the damages for such sum as will compensate the plaintiff for the loss of her son’s services from' the date cf his death to the time when he would have arrived at the age of twenty-one years, and for the burial and other expenses, if any, incurred by her by reason of his sickness and death, and they are not permitted to allow the plaintiff anything for the mental care, anguish and suffering which she endured by reason of the death of her son.” McGowan v. Ore & Steel Co., 109 Mo. 518.
YI. Nor was there any evidence upon which to base the instruction as to the boy’s contributory negligence. Unlike the defendants, he was charged with no duty to look after the walls to this building. Without, warning of any kind, he had a right to assume he could safely use the sidewalk on this street. Roe v. Kansas City, 100 Mo. 190.
Finding no error in the record, the judgment is affirmed.
Dissenting Opinion
(dissenting). — Action by plaintiff as the mother of her minor son, some fifteen years of age, who was killed by the falling of a large facing stone, situated in the fourth story of the front wall of the brick building known as number 407 North Fourth street.
A fire had occurred in that building on the fifth of February, and the accident happened on the twenty-ninth of that month. There was no dispute as to the immediate cause of the death. There were no barriers erected in front of the burned premises, and travel continued as before along the sidewalk, which was a busy thoroughfare.
At the close of the plaintiff’s case, the defendant city and the codefendant, Mrs. Webb, who had a leasehold
All the material portions of the testimony bearing on the issue of the negligence of the defendants will now be set forth:
A. G-. Peterson testified that he was a merchant at 409 North Fourth street, just north of the buildings where the fire took place, early in February, 1888; that the front wall was situated straight up against the edge of the inner sidewalk; the house was four stories high. * * * The fire left the inside of the building entirely burned out; the second, third and fourth floors all fell down into the basement and left the walls standing; up to the twenty-ninth of February there was no change in the wall on Fourth street; that they had begun to take out the refuse — the old paper, goods, and one thing and another; that he was standing in his store near the door talking to a gentleman when he Meard this crash; from his door to where the boy was hurt is about twenty-five feet; as soon as the crash took place he looked that-way and saw the boy sitting down, with his legs setting' out like that (indicating), and was bracing himself behind. * * * He did not see the boy before he was struck; the material had fallen from the fourth story, from between two windows; it was the outer sandstone covering, and was, he judged, six or seven feet long; it came out of number 407 North Fourth street. * * * There was nothing on the pavement prior to the accident to hinder people from walking there, nor was there any sign warning passengers not to walk on the pavement. * * * The stone was six feet in length and probably thirty inches wide and three inches thick; it formed part of the outside covering of this building, and fell a height of more than thirty-five feet; * *' * It weighed two hundred or three hundred
William S. Woods testified that he is in the coal business; that he was walking south on west side of Fourth street, and was about fifty or seventy-five feet north of number 407 when a stone fell from that building. * * * He saw nothing to indicate that there was danger- in passing there. * * * There had been a fire there, but he did not remember definitely when; the windows were burnt out and the front had a sort of general appearance of wreck on the lower floors particularly; but, in the main, it looked as though the front wall was in a condition to be retained as it was. * * The stone had reached the ground before the witness saw it; he afterward saw the place in the wall where the stone came out of; the stone was probably six feet long, not quite three feet broad, and perhaps four inches thick, and weighed, he thought, between fifty and one hundred pounds.
David Shaw testified that on February 29,1888, he worked in a clothing store at 314 North Fourth street; that on that day, somewhere between eleven and twelve o’clock, he was standing in front of the store and looking toward number 407, on the other side of the street; that he saw the rock when it came down from the outside wall; it was about four inches thick; it was the slab between the two windows in the fourth story; the wall stands on a line with the street; he saw it just as it fell.
Hugo Muench testified that he is an attorney at law; that some time after the fire in the Hildreth building, as he was going up on the east side of Fourth
“ Q. Did you notice any report of an injury in the newspapers? (Defendants’ counsel objected to the ■question.)
“The Court: I suppose you want in that way to
■get him to fix the time?
“Mr. Eassieur: Yes, sir.”
The court overruled the objection, to which ruling -defendants then and there duly excepted.
“The witness: I did.”
He then stated that he had noticed the stone a day •or two before the accident happened.
Defendant objected to this testimony as irrelevant ■and incompetent; objection overruled, and defendants ■excepted.
On cross-examination, he said that he did not notify the city of the condition of the stone at any time. People were passing in front of the building at the time; he passed there himself without thinking of the stone at all until he had passed, and then it occurred to him that may be he had done a foolish thing, and he stopped and looked at the stone again; that the debris was being taken out of the building at "that time, and there was a pile of material in the street.
Daniel Walsh testified that he had been on the police force over seventeen years; that in February, 1888, his heat included the premises at 405 and 407 North Fourth •street; that he was at the corner of Fourth and Locust when a portion of the front wall fell down at 407 North
On the part of the defendants the following is the substance of the testimony bearing on the question at issue:
John T. Hester testified that he was employed by the city as inspector of buildings; that he was a bricklayer for thirty-one years before he became building inspector; that he was familiar with the construction of buildings; that on the second day after the fire he made an official inspection of the premises for the purpose of ascertaining whether the walls were dangerous or safe as to persons using the sidewalk; that he examined the front wall carefully and noticed in one or two places that the pilasters were slightly chipped by the fire and water, as he thought; that there was no indication at that time that any of the stones in the front wall were likely to slide out; that he examined the wall four times in all prior to the stone falling, but he never saw anything to indicate that that stone or any other portion of the front wall was going to.
Benjamin Lynds testified that he is a builder and has been in that business for thirty years in St. Louis; that he went over the buildings, numbers 405 and 407 North Fourth street, the day after the fire there at the request of Mr. Kaime and the insurance companies, with a view of seeing if the parts standing were in a safe or dangerous condition; that he and Mr. Ross afterwards appraised the damage to the building for the companies and Mrs. Webb; that he was engaged there in that work about ten days; that he examined all parts of the building, from the cellar to the roof; that he saw
Wm. Atchison, president of the St. Louis Wrecking Company, who has been engaged in the wrecking business some five years, testified that his company was employed to remove the debris and salvage for the insurance companies after the fire at 407 North Fourth street; that his contract was with Butler, Collins & Powell, who represented the insurance companies; that this work was finished before February 28; that the wrecking company afterwards did another job there for Lynds & Co., taking down some portions of walls; that the company started to work on this contract with Lynds on the morning of February 29, at about eight o’clock; that he commenced work on the burned buildings on the morning of February 29; that the St. Louis Wrecking Company is a corporation, and its home is St. Louis; he was to take down such portions as needed to be taken down, in order to pave the way for rebuilding; that one or two piers of the front wall
OPINION.
The foregoing statement of the material facts in evidence in this cause has been made at considerable length and fulnes^, in order to determine whether the instructions in the nature of demurrer to the evidence offered by the respective defendants at the close of plaintiff’s ease, should have been given.
Here the charge is negligence, and, where this charge is made against a municipal corporation, it is said: “The duty of a municipal corporation to manage and maintain its public works, such as sewers, water-pipes, streets and bridges, in such a condition of repair that they shall not cause damage to another, does not, in the absence of a statute to that effect, raise an absolute liability on the part of the corporation for every injury caused by a defect in such public works. The ■extent of the duty of the corporation is to use ordinary
Touching negligence, it is elsewhere aptly said: “The liability is not that of a guarantor of the safety of' the traveler. The corporate authorities are only bound to use reasonable skill and diligence in making the-streets and sidewalks safe and convenient for travel. They are under no obligation to provide fqr everything that may happen upon them, but only for such things as ordinarily exist or such as may reasonably be expected to occur.” “The ground of the action is either positive misfeasance on the part of the corporation, its officers, or servants, or by others under its. authority, in doing acts which cause the streets to be out of repair, in which case no other notice to the corporation of the condition of the street is essential to its liability; qr the ground of.the action is the neglect of the corporation to put the streets in repair, or to remove the obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, in which cases notice of the condition of the street, or • what is equivalent to notice, is necessary, as ¡will presently be stated, to give to the person injured a right of action against the corporation.” 2 Dillon on Municipal Corporations [4Ed.] secs. 1012, 1020.
Speaking of when notice of the defect or danger in the highway will be implied, and so charge the city, the authors first quoted, supra, say: “For practical purposes, the opportunity of knowing, in such eases,, must stand for actual knowledge; and, therefore,, where open defects in a highway have existed for a considerable time, notice of them is implied and is imputed to those whose duty it is to repair them; in other words, they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. Such notice may be. imputed also where a defect, though temporary, has been of frequent occurrence during a long period; for example, where an individual has habitually used an unguarded cellar door in the sidewalk; but, on the other hand it is not to be imputed where a lawful structure has been proved to be exceptionally safe, during a long period. It is evident that notice should not be so readily presumed from the continuance of latent defects, as in the case of such as are open; while others, like an unguarded precipice at the side of a street, or a decayed wall hanging over a sidewalk, are so dangerous as to challenge immediate attention; so that the jury may be warranted in finding a very short continuance of these notorious defects to constitute a sufficient
In instances like the present, express notice must be brought home to the municipality, or, if the defect be so notorious ,as to be observable by all, this is tantamount to express notice. Mayor v. Sheffield, 4 Wall. 189. Thus, in Requa v. City of Rochester, 45 N. Y. 129, where some planks were removed by some unknown person from a bridge used by the city, Folgeb, J., after speaking of the necessity of actual, or of its legal alternative or equivalent, implied, notice, in order to charge the city with liability, said: “In looking into the facts in this case, it is plain to us, that the defect in this ■ bridge had existed for some days before the accident, and was known to many of the inhabitants of the city. The jury have found that the existence of it had been communicated to one of the members of the common council. Though this would not, under all •circumstances, be proof of an express notice to the city of the defect in the bridge, it was proof of the notoriety of it. We think that there is sufficient to bring the •case within the alternative above put, and that it was .so notorious as to be observable by all.”
In Hume v. Mayor, 47 N. Y. 639, the facts were these: “Plaintiff was injured by the fall of a wooden awning over a sidewalk upon one of defendant’s streets. The awning was constructed m the usual manner, by •competent mechanics, with timbers of proper form and •size. Four months prior to the accident the awning had ‘been injured by a fire engine running against it. It was repaired by a competent mechanic who did what he supposed necessary to make it safe. A day or two before the accident there had been an unusually heavy fall of snow, and a heavy body of it remained upon the awning. That part of the awning which had been repaired gave way,” and the court refused to charge that
In Yermont it is held, under certain statutory provisions that the duty of towns to keep their highways in good and sufficient repair is not “to be measured by the exercise of ordinary care and diligence;” that a, higher degree of care is requisite to satisfy the demands of the statute, and yet it was held in that state that where the defendant town’s highway gave way in consequence of some latent defect under the ground, which was not known or discoverable, and the plaintiff’s horse-was injured, it was held that the town was not liable for the injury. Barrett, J., remarking, “It was a. latent defect under the ground, not discoverable, and which the authorities of the town could not have learned about. To hold the town liable in this case would establish a principle and rule that would render' the town liable as absolute insurers against the consequences of all defects, however produced,” Prindle v. Fletcher, 39 Vt. 255.
In Klatt v. Milwaukee, 53 Wis. 196, it was held that notice could not be imputed where the barrier at a street opening was up at four p. m., was removed by a stranger, and the accident occurred at nine* o’clock the same evening, and that it could not be where the accident happened on the seventh of the month, and the street superintendent had found the sidewalk not out of repair on the first (Goodnough v. Oshkosh, 24 Wis. 549); and where the defect had existed but for one day (Sheet v. Appleton, 5 N. W. Rep. 27); and where the sidewalk had been laid but seven days, and was in a remote street (Chicago v. McCarthy, 75 Ill. 602); and where it snowed on Thursday, then rained and froze, and plaintiff fell on the ice thus formed, on Sunday (Mueller v. Newburgh, 32 Hun, 24); and where plaintiff fell at one p. m. on ice which had formed the night before (Blakeley v. Troy, 18 Hun, 167); and where it
Where the flag-stone of a sidewalk had three supports, and was cracked over the middle one, the court said that if the defect in the sidewalk “was of such a nature as not to cause a reasonably prudent man, whose business it was to look after the repairs of the street, to suspect its dangerous condition, or if it would not, in view of all the circumstances, put him upon inquiry to examine its condition, then there would not be notice.” Joliet v. Walker, 7 Ill. App. 267.
In Mayor v. Wilson, 9 S. E. Rep. 17, the case was "this: “The afternoon before the plaintiff was injured, the hardest rain of the season fell. Before the rain, and afterwards, the marshal of the town went to the place, and examined it carefully, and could not detect ■ any defect in the sidewalk or the sewer. The injury was caused by the dirt and sand becoming very wet from the hard rain and caving in one side ' of the sewer. Held, that plaintiff was not entitled to recover, the defect not having existed for a sufficient length of time from which notice thereof could be inferred on the part of the town.”
In that case Simmons, J., said: “According to the evidence in this record, the officers and servants of this municipal corporation • exercised all the care and diligence that was possible, under the circumstances. They examined this sewer twice in one day. It had been there for years, and nothing had ever occurred to put- them on notice that there Avas any defect in the sewer, or that it was dangerous, or likely to become so. A municipal corporation cannot be held liable for damages occurring by reason of a defect in its streets, sidewalks, sewers or bridges, when it has no notice "thereof, or when such defect has not existed for a suffi
In Grogan v. Foundry Co., 87 Mo. 321, the evidence-showed the fire occurred on the ninth of January, 1881, which partially destroyed the building, leaving its walls in a shaky and ruinous condition, and which condition was very obvious, at least eight or ten days before the walls fell; so much so that Bohan, on the twenty-ninth of March, who was doing business on the opposite side-of the street, seeing the dangerous condition of the wall, and feeling it was his-duty to do so, notified in writing-the proper authorities of its unsafe condition. Upon this notification, but not before, and for the first time, the city sent an officer to inspect the wall, and the next day after such inspection the wall fell. No comment is necessary to show the entire absence of parallelism between that case and the case at bar.
Nor does Carrington v. St. Louis, 89 Mo. 208, at all resemble this one. There, Batte, a policeman and uan officer, an agent of the city,” propped the cellar doors open with a stick; painted them and left them to dry, from between one and two o’clock until about half past five o’clock in the afternoon, after it was dark, when the plaintiff fell upon the doors and was injured. Besides, these doors covered a cellar-way opening into a' building used by the police commissioners as a police station, a place, of course, of great .travel and great publicity. “The sidewalk at this place was much resorted to for travel, so much so that scarcely ten seconds of time intervened between the time in which persons would pass and repass both day and night.” And it is expressly said in that case, that “assuming that
There the “officer and agent of the city77 did the very act which resulted in the litigated injury, and there, too, were the elements of notoriety and publicity. When you come to read that case, you cannot doubt that, but for the fact that Batte was ruled to occupy the official capacity aforesaid, even the conspicuous nature of the defect would not, during the time which elapsed, have been ruled to be a basis of municipal liability. Here, on the contrary, the defect which caused the injury, under the authorities must be regarded for the purposes of this case, as a latent defect, when it is considered what care and caution were exhibited by Hester, the city inspector, and by Lynds, the agent and contractor for Mrs. Webb. If such thorough, complete and repeated inspections and examinations as were made in this case do not fill the measure of duty required at the hands of the respective defendants, and all parties similarly situated, then each of them must be regarded in the light of warrantors or insurers of the safety of those who use the municipal highways.
As to Muench’s testimony, it may be remarked, that, of all the thronging thousands, composing the human flood that with ceaseless tide went swirling by 407 North Fourth street, he alone possessed a vision sufficiently acute to detect the bulge in the facing stone which fell in a “day or two77 afterwards; but he hid his secret in his breast, revealed it to no one, and so the city had no benefit of his keenness of vision.
Unable to concur in the foregoing opinion, I herewith refile my original' opinion as expressing my dissenting views herein.
