44 Mo. App. 380 | Mo. Ct. App. | 1891
The defendant is the owner of a rook quarry on a lot adjoining Carr Lane street in the city of St. Louis. He made an excavation on the lot about eighteen or twenty feet deep, which extended to the line of the street. On the night of the twentieth of August, 1887, plaintiff’s horse fell into this excavation from Carr Lane street. The animal was so injured by the fall, that it had to be killed. In this action the plaintiff sued for its value, and he recovered a judgment for $87.50. The defendant has appealed.
The negligence, which was stated in the petition, and upon which'a recovery was had, was the failure of the defendant to comply with the following city ordinance : “Every person, who shall make, or cause to be made, any excavation in or adjoining any public street, alley, highway or public place, shall cause the same to be jenced in with a substantial fence not less than three feet high, and so placed as to prevent persons, animals or vehicles from falling into said excavation, and every person making, or causing to be made, any such excavation,” etc.
That defendant was the owner of the lot, and made the excavation up to the line of Carr Lane street, is not disputed. Nor is it pretended that there was a compliance, or an attempted compliance, with the requirements of the ordinance.
The court gave the following instruction, of which the defendant especially complains: “The court
The only contention made by the defendant is that the ordinance undertakes to create a liability where none existed under the general law ; hence its violation could not be made the basis of a civil action between private citizens. In support of this position his counsel rely on the case of Norton v. City of St. Louis, 97 Mo. 537, and Eisenberg v. Railroad, 33 Mo. App. 85.
We believe it to be a correct legal proposition that the violation of a municipal ordinance, like the one under consideration, can only be made the basis of an action between third parties, when the ordinance or regulation rests upon, and has for its object, the enforcement (in a particular way) of an obligation imposed by the general law.
In the case of Norton v. The City of St. Louis, supra, the liability of a property-owner for damages to a third person for failure to keep the sidewalk in front of its premises clear of ice and snow, as required by the city ordinance, was incidentally discussed. The Connecticut Mutual Life Insurance Company allowed snow and ice to accumulate on the sidewalk in front of
The circuit court held, on demurrer, that the insurance company was not liable to the plaintiff for the injuries received. On an appeal by the city, the supreme court, in discussing the effect of the ordinance in respect of the liability of the insurance company, said : “ For the neglect of this duty of the citizen the city might impose such a penalty as would be calculated to secure its performance, if it has the power to impose such a burden, but it could not create a liability to damages for a civil action by a private individual against one who has failed to discharge the city’s duty in that behalf,” citing Flynn v. Canton Co., 40 Md. 312; Vandyke v. Cincinnati, 1 Disney, 532 ; Heeney v. Sprague, 11 R. I. 456; Kirby v. Association, 14 Gray, 249 ; Jansen v. City of Atchison, 16 Kan. 358.
The ruling of the court in respect of the non-liability of the insurance company could not have been •otherwise. It was based upon the idea, that the deposit of snow and ice on the sidewalk was from natural causes, and was in no way attributable to the acts of the insurance company. As the common law, under such a state of facts, failed to afford Mrs. Norton a right of action against the insurance company, the supreme court very properly held that the city of St. Louis could not create one in her favor. This doctrine in no way militates against the well-settled principle, that, whenever a party causes or creates a nuisance or obstruction in a public street, he is responsible in damages for special injury received in consequence thereof. If it had appeared that the ice had accumulated on the sidewalk from the negligence of the insurance company
In the case of Eisenberg v. Railroad, supra, the court held that the city ordinance in reference to exea-' vations was irrelevant in that case, because it appeared that the excavation complained of was on the private grounds of defendant, and was not near or adjoining* a public street, and that, for this reason, the company could not be held for the violation of the ordinance. The true ground of liability (if there was any) was necessarily predicated on the failure of the company to keep its grounds in a condition reasonably safe for those who had occasion to come on the premises. Hence this court held, and properly so, that the ordinance, as a matter of evidence, was irrelevant to the issues in that case.
It is manifest that the foregoing decisions in no way support the defendant’s position. Here we have a very different case. It is conceded that the defendant’s rock quarry was located on a lot adjoining a public street, and that the defendant had made an excavation fifteen or twenty feet deep, which extended to the very edge of the street. Under such a state of facts, the general law imposed on the defendant the duty of erecting some kind of a barrier which would be reasonably sufficient to prevent persons or animals passing along the street, from falling into the quarry. We find this principle stated in Shearman and Redfield on Negligence, section 505, as follows: “The occupant of land is under no obligation to strangers to place guards around excavations made by him, unless such excavations are so near a public way as to be dangerous, under ordinary circumstances, to persons passing upon the way and using ordinary care to keep upon the proper path, in which case he must take reasonable precautions to prevent injuries happening therefrom to such persons.”
The foregoing authorities render the defendant’s contention untenable. The ordinance did not create a cause of action against the defendant. It only provided that the defendant as the owner of the rock quarry should discharge his legal obligation to the public in a certain way. He failed to observe its requirements, and if the plaintiff’s horse received injuries in consequence of such failure* the right of action was complete. The circuit court proceeded on this theory, in which we
With the concurrence of the other judges, the judgment of the circuit court will be affirmed. It is so •ordered.