185 Mo. 366 | Mo. | 1904
This is an action for. damages-for personal injuries sustained by the plaintiff, on February 23, 1900, at about eleven o’clock, a. m., caused by the turning over of a milk-wagon that he was driving along the north side of Chouteau avenue, in front of No. 2775 Chouteau avenue. The plaintiff recovered a judgment for two thousand dollars, and the defendant appealed.
The negligence charged in the petition is, that the •city “raised or caused to be raised the middle portion of said Chouteau avenue at said place, so that said middle portion was much higher than said portion in and along the said gutter at said place, and defendant by its proper officers and agents long prior to said February 23, 1900, until and for sometime after said date, permitted and allowed to remain a steep decline, in said street at said place beginning near the said middle portion and running toward and into said gutter, and said deep depression and said deep decline were dangerous to vehicles passing along said open road,” and that the city was negligent in not remedying the said condition after it knew or by the exercise of ordinary care could have known thereof. The answer is a general denial and a plea of contributory negligence.
The facts in judgment are' these:
Chouteau avenue runs east and west, is a very broad street, and has a double street car track in the
The plaintiff had been a driver of various kinds of delivery wagons in the city for nearly twenty years before the accident. For a period, ranging from ten days to three or four weeks, according to the testimony of the various witnesses, immediately preceding the accident, he had been driving a milk wagon for the Union Dairy Company, and had driven the wagon every day over the stréet at and near the place of the
I.
The first and principal error assigned here, is the action of the trial court in overruling the demurrers to the evidence, and it is insisted that the facts in judgment do not warrant a judgment against the city.
The plaintiff’s case is bottomed entirely upon the charge that the cross-grade of the street was a dangerous condition and that a wagon could not be safely driven along it, and hence the city was negligent in not remedying it.
For the ten feet immediately north of the car track, the cross-grade, was only forty one-hundredths of one foot. This is less than six inches in ten feet. There can be no question in the minds of reasonable men that such a grade is not dangerous. The plaintiff’s wagon was . four feet and ten inches wide. The width of the other wagon is not given, but deducting the width of the plaintiff’s wagon, four feet and ten inches, from the ten feet aforesaid, leaves a space of five feet and two inches for the other wagon to pass in. And if the other wagon was the same width as the plaintiff’s wagon, it follows that they could have passed each other safely, and there would have been four inches space to spare in the ten-foot space aforesaid.
But in addition to the ten feet aforesaid there were also two feet and six inches more space before the outer edge of the gutter would be reached. The cross-grade of this additional space was about eighty one-hundredths of one foot, or about twenty-four one- . hundredths to the foot. ■ It can not successfully be contended that this was a dangerous grade or condition. Assuming that the left wheels of the plaintiff’s
There was, therefore, ample space for the plaintiff’s wagon and the other wagon to haye safely passed each other, without the left wheels of the plaintiff’s wagon going into the gutter at all.
But assume that it was necessary for the left wheels of the plaintiff’s wagon to go into the gutter so as to give room to pass the other wagon, and the condition then would he that the left wheels of the plaintiff’s wagon would he one foot and fifty-eight one-hundredths of a foot lower than the right wheels of the plaintiff’s wagon. Even this would not he a dangerous place to drive in if the driver exercised any degree of care at all commensurate with the risk. Of course, if he drove rapidly into and along such a place, the momentum toward the left given the wagon from driving the left wheels suddenly and rapidly into, the gutter would likely cause the wagon to turn over. The plaintiff’s wagon, however, was low swung, and the weight was therefore near the ground, and this would make it harder to turn it over.
Something else than the character of the cross-grade must, therefore, have caused the wagon to turn over. Some of the witnesses say the wheels slipped towards the gutter, and that they continued to slip during the time that the plaintiff drove from ten to fifty feet before the wagon turned over. If this was the case, the plaintiff himself was negligent -in not stopping before the wheels had slipped all the way into the gutter. Other witnesses say there was a pile
Viewed in every possible light and from every conceivable standpoint, there is, therefore, no negligence on the part of the city shown in the case. It is the duty of the city to keep its streets in a reasonably safe condition for persons, exercising ordinary care, to travel over them. But human foresight has never yet been able to prevent accidents, and all that the law requires of a city is that it shall exercise such care in respect to the safety of its streets as persons of ordinary prudence ■ would have used under the same or similar circumstances. It nowhere appears from this record that the city has, in any wise, failed in its duty in this case. The trial court should have sustained the demurrers to the evidence. The verdict is without any foundation in fact sufficient to create a liability on the part of the city, and as no good can come of sending the case back for another trial, the judgment is reversed without remanding the cause.