124 Mo. 347 | Mo. | 1894
Plaintiff recovered judgment for $5,000 against the said company, and the city of St. Louis, for injuries received on account of alleged neg
The accident occurred on North Ninth street at its intersection with Park avenue. Park avenue runs east and west through the city, and is thirty six feet wide between the curbing. Ninth street runs north and south. South Ninth street runs into Paris; avenue and north Ninth street running north leaves said avenue about one hundred feet east of the intersection of north Ninth. The grade of Park' avenue between these intersections is about five inches lower towards the east. The foot walk across North Ninth street is nearly level. This street descends to the north, three inches in fifty feet, and is thirty feet wide between the curbing.
The defendant company is engaged in the manufacture of iron pillars, and other material, for use in the construction of buildings. Its works are located on the corner of north Ninth street and Park avenue, fronting west on the former and south on the latter street. After heavy iron columns were manufactured by said company they were laid on these streets outside the curbing until they could be hauled away. This use of the streets was permitted by the city, though no ordinance giving permission was shown. This was a manufacturing locality, and other manufacturers in the neighborhood made a like use of the streets. Defendant company sometimes kept iron pillars on the streets for some weeks before they were removed. More or
On the day of the accident said defendant had 'columns ten inches in diameter piled on the side of each of these streets. Those on Ninth street extended out from the curb to a distance estimated by witnesses at from six to fifteen feet. They were piled on top of each- other, as explained, like cannon balls. The evidence tended to show that they extended still further into Park avenue, the ends being near the corner on that street and north of the crops walk on Ninth. How long these pillars had remained there does not appear definitely but some of them certainly for several days. They made a pile three or four feet high.
On the afternoon of the accident, September 7, 1890, plaintiff borrowed a light one horse wagon, without springs, having on it a bed, or box, used for hauling manure. To this wagon he hitched a three year old horse, which was gentle and tractable. He loaded the wagon with five bundles of kindling wood, each weighing about- one hundred pounds, and started to take it home. He traveled down South Ninth street to Park avenue; he crossed over that avenue to the north side and thence east allowing the wheels of the wagon to rub against the curb to act as a brake. When he reached the corner of Ninth street he discovered a sewer inlet at the corner of the curb extending out about a foot. To avoid this inlet he turned or curved to the right. Plaintiff as a witness related what occurred as follows:
“When I got near the corner there was a sewer hole there, and I turned off to ‘get around the sewer hole; made a swing around; and when I got around the corner (you can not hold back there after you have made the turn), I kind of looked down Park avenue; saw another big pile of iron there, and another big wagon going along there, which cut that street off; I
Plaintiff further testified that the collision occurred eight or nine feet north of the cross walk; that the horse was on the cross walk before he saw the iron and discovered that it was dangerous. Could not stop because the wagon was pushing the horse. He cheeked him up.
There was a great and irreconcilable conflict in the evidence as to the cause and manner of the accident, particularly as to whether the wheel of the wagon touched the iron at all and as to the distance the iron extended into the street.
At the close of the evidence defendants asked an instruction, in the nature of a demurer to the evidence which was refused. To this action of the court error is assigned on the ground that no negligence of defendants was shown, and that plaintiff was conclusively shown to have been guilty of contributory negligence. The other errors assigned are to the admission of- evidence and the giving of instructions. .
I. The general rule which has been repeatedly declared by this- court is that municipal corporations
•There is a well recognized qualification to this strict rule which is declared by Judge Dillon in this language: “But it is hot every obstruction, irrespective of its character or purpose, that is illegal, even although not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstnicted %ise of a street or ivay is subject to reasonable and necessary limitations and restrictions. The carriage and delivery' of fuel, grain, goods, etc., are legitimate uses of a street, and may result in a temporary obstruction to the right of public transit. * * * Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to or limitations of it. They can be justified when, and only so long as they are, reasonably necessary. There need be no absolute necessity: it suffices that the necessity is a reasonable one.” 2 Dillion on Munic.. Corp. [4 Ed.] sec. 730 and cases cited. Stephens v. Macon, 83 Mo. 346; Welsh v. Wilson, 101 N. Y. 256.
There can be no doubt, under this obviously just qualification, that the manufacturing company had the right to make reasonable use of these streets for the deposit of their manufactured goods, for the purpose of loading and unloading them, though not directly authorized by an ordinance of the city. But it had no right to make a permanent use of the streets for storing its property, or to make such temporary use as would
II. It is the duty of a traveler on a public street to exercise reasonable care; but it is held that the use of a street known to be defective, or obstructed, ean not be charged as negligence in law. Loewer v. Sedalia, 77 Mo. 444; Smith v. St. Joseph, supra; Maus v. Springfield, 101 Mo. 618.
But one will be chargeable with negligence in law, who is injured in an attempt to pass over an obstruction or defect in a street which is obviously and necessarily dangerous. In such case he assumes whatever risk may attend the undertaking. “A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.” Butterfield v. Forrester, 11 East, 60. “One who attempts to cross over a sidewalk as part of a road, known to him to be dangerous, when the dangerous place could have been easily avoided, as by passing around it, or .taking another side of the road, is wanting in due care, and the court may so say as a matter of law.” Cohn v. Kansas City, 108 Mo. 393. This principle is clearly recognized in Mans v. Springfield, supra.
Beach, in his work on contributory negligence (sec. 247), declares the rule in this language: “When the highway is out of order it is held, as a general rule,
Defendants insist that under these rules of law applied to the evidence in this case plaintiff is chargeable with such contributory negligence as bars a recovery.
There would be much force in this contention if the evidence showed conclusively that plaintiff attempted to turn into Ninth street, in the manner shown by the evidence, with knowledge of the danger he would incur in doing so. But plaintiff testified, and the jury must determine the weight to be given his evidence, that he did not see the obstruction, or the dangers it involved, until his horse was upon the walk across Ninth street, and he was at that time within ten or fifteen feet of the iron pillars; that the horse was in a trot, the wagon, having no brakes, was pushing him, by reason of, which he was unable to stop, nor could he then change his course back upon Park avenue,, because that street was similarly obstructed. Admitting the truth of this evidence, which we must do on this inquiry, we can not say as a matter of law that plaintiff was negligent, either in going into a dangerous situation, or in his efforts to avoid a collision, though he may not, ih the emergency, have used the safest means to extricate himself.
Nor can we say, as a matter of law, that plaintiff had knowledge of the habitual obstruction of the street from the facts that he lived within six blocks of the place and had passed it several times within a few years previous to the occasion of his injury. The observations he may then have made may have been so casual as to leave no such lasting impressions on his memory, as would charge him with knowledge. Moreover, he may have noticed obstructions at one or more times without being chargeable with knowledge that they were constantly maintained. His knowledge of- the condi
All these questions were fairly submitted to the jury under instructions of the court. We think that plaintiff made a case which was properly submitted to the jury.
III. During the trial a witness was asked to state,’ how, about the time of the accident, and for some months before, iron was piled up along on the east side of Ninth street. This question was objected to as being ' immaterial, incompetent and irrelevant. The objection was overruled, and the witness answered that he had seen it piled out in the middle of the street; “it had been that way pretty near all along.”
The petition charged, in substance, that on the fifteenth day of September, 1890, and for a long time prior thereto, defendant company had wrongfully placed, and permitted to remain upon the street, iron castings, in consequence of which, on said day, said street was obstructed, and made unsafe for persons with horses and vehicles to travel upon or along the same, and that the city had notice and permitted this obstruction. The general denial of defendants put in issue not only the fact of the obstruction, but also the fact that it was wrongful.
As has been seen, defendant company had no right, even in the conduct of its business, to obstruct the street in an unreasonable manner for any length of time, or for an unreasonable time in any manner. Plaintiff had the right, under the issues, to prove that the obstruction was wrongful in either or both of these particulars. Por the purpose of proving, then, that the obstruction was wrongful on account of the unreasonable time it had been continued, the evidence was admissible against said defendant company. It was also admissible against the city as tending to prove
IY. Defendant objects to the third and fourth instructions. These instructions told the jury, in substance, that defendant company had no right in the conduct of its business, to occupy said street, in front of its premises, in receiving and discharging its manufactured goods and material, or in such a manner as to cause obstruction for weeks or months, or for an unreasonable time, &nd, if it did so prior to, and at the time of, plaintiff’s injury, it was guilty of actionable negligence.
The same objections are made to these instructions as were urged to the admissibility of the evidence of such continued use of the street. In addition to what has already been said on the subject, we may add, that no one has the right, in the management of its business, whatever its character, nor however necessary and convenient it may be, to constantly, or for any considerable portion of the time, use the street in front of his premises for the deposit of his goods and thus interfere with its legitimate use. Wood on Nuisances, p. 314. The instructions were not objectionable.
Y. The court declared by the first instruction given in behalf of plaintiff, that it was the duty of the city to have used “reasonable and ordinary care to keep said street in repair and in a condition reasonably suitable and safe for travel thereon.” This instruction is criticized on the ground that there was neither allegation nor proof that the street was in any respect out of repair.
It is true that the petition charged, and the evidence tended to prove, a wrongful obstruction' of the street itself. But we can only regard this use of the word as a slight want of accuracy which could not have misled the jury. All the evidence was directed to the
YI. The testimony of the witnesses on some of the questions is quite conflicting. Indeed wholly irreconcilable. The credibility of some of them was also questioned. In view of these facts we can not say that there was no occasion for giving an instruction to the effect that if the jury believed that any of the witnesses had willfully sworn falsely, to any material fact, they might disregard the whole, or any part of his testimony. Seligman v. Rogers, 113 Mo. 659.
YII. Defendants complain of that part of the instruction on the measure of damages which allows compensation: “First. For any pain of body or mind that he has suffered, or will hereafter suffer, by reason of said injury. Second. For any loss of earnings that he has suffered, or will hereafter suffer, by reason of said injury,” etc.
The petition lays plaintiff’s damages in the following language: “Whereby he has been permanently disabled from performing labor, and has been made a cripple for life, * * * also suffered great pain of mind and body; and he is unfitted for carrying on his vocation, and he has lost and will lose the earnings of his labor,” etc. This is followed by a general allegation of damages.
The petition counts specially on loss of earnings as an element of damages. We do not think it necessary to allege the quantum of such damage. ‘ ‘It is one sort of special damages and consequently must in some wise be counted upon to constitute a basis for evidence on the subject.” Mellor v. Railroad, 105 Mo. 464, and cases cited. It is clearly inferable from these decisions that evidence of damages, for loss of earnings, is admissible under a general averment of such loss.
Finding no error upon the record, the judgment is affirmed.