28 Mo. App. 657 | Mo. Ct. App. | 1888
delivered the opinion of the Gourt.
This is an action for damages for negligence. The defendant is a corporation, maintaining a cable street
At the trial, the plaintiff gave evidence tending to-show that, on the day of the accident, he was in the employ of the St. Louis Oil Company; that he and Mr. Trauber, another employe of the same company, were-driving out in an ordinary one-horse open buggy, soliciting orders for their employers; that they had occasion to drive along Wash street toward the west at a point west of Eighteenth street; that the defendant maintains on that street a double-track cable street railway; that this railway is so constructed that the power is supplied by a subterranean cable, which is taken hold of by a grip extending from one of the cars through a slot; that this slot is an aperture ordinarily three-fourths to seven-eighths of an inch in width, in an iron, frame work set into the street so as to be about
The court submitted the case to the jury upon instructions which required them to find for the plaintiff, if they should find that the defendant, through the want of ordinary care, allowed the slot in its roadbed to become ‘£ wider than the reasonable requirements of operating its road required.” The court also submitted to the jury the question of the contributory negligence of the plaintiff, upon an instruction which in itself was well drawn.
I. The first point made by the appellant is, that the petition states no cause of action, inasmuch as it fails to allege that the defendant had notice or knowledge that the slot was dangerously wide at the/ place of’ the injury. There is no rule of pleading in this state which requires the plaintiff. in such an action to make such an allegation. Hall v. Railroad, 74 Mo. 298; see also Thorpe v. Railroad, 89 Mo. 650, 655.
II. The next assignment of error is, that the case should have been taken from the jury, because the plaintiff ’ s own testimony and that of his witnesses established the fact that his injuries were the direct result of his own negligence. We do not so understand the testimony. The testimony tends to show that the fact that the slot in such a railway track is wider at a particular place than usual would not ordinarily be perceived by a person driving in a buggy. There was no evidence tending to show that the plaintiff knew that the slot at any place was so wide that his buggy-wheel would be apt to run into it if driven parallel with it, and his own testimony was to the effect that he did not know this. A traveler driving along an improved public highway may rightfully presume, in the absence of notice or knowledge to the contrary, that it is reasonably free from obstructions or dangerous pitfalls and in a reasonably safe condition for public travel; and while he may not recklessly cast himself upon visible or known obstructions, or, taking his chances of safety, attempt to pass dangerous places which are apparent to him, or even fail to make ordinary use of his faculties with the view of discovering any obstructions which may exist, without incurring the imputation of contributory negligence — yet no respectable judicial authority can’ be adduced in support of the proposition that a traveler conclusively incurs this imputation by reason of so driving his buggy that its wheels sink into an aperture of this kind, not known to him to be negligently wide or
It may not be out of place to observe that the only error committed by the trial court touching the question of contributory negligence, was the error of submitting it to the jury at all, since it was not pleaded. It is only where a conclusive inference of contributory negligence arises out of the plaintiff’s own testimony or that of his witnesses, either on their direct or their cross-examination, that contributory negligence will bar his recovery, although not pleaded. Milburn v. Railroad, 86 Mo. 104; Buesching v. Gas Light Co., 73 Mo. 219, 229. In other cases contributory negligence is an affirmative defence, to be pleaded and proved by the defendant, in order to entitle him to have it submitted to the jury (Donovan v. Railroad, 89 Mo. 147, 150; Matthews v. Railroad, 26 Mo. App. 75, 83; Fell v. Coal Mining Co., 23 Mo. App. 217); and if it is not so pleaded and proved, and is nevertheless submitted to the jury, thé case falls within the rule that it is error to submit to the jury an issue not made by the pleadings. We allude to this ruling, not by way of unnecessary criticism, but to show that the case was tried with even undue attention to the rights of the defendant.
III. The next assignment of error is, that there was a total absence of evidence as to the time when the slot at the place where the plaintiff was injured first widened out so as to become dangerous, within the meaning of the rule which would impute knowledge to the defendant of the defect from the mere lapse of
We were appealed to on the argument to define the rights of the proprietors of this new mode of transit in respect of the use of the public streets. This record does not disclose the fact that this defendant had any such right at all, and it, therefore, does not call for any observation on our part in response to this request. But we may perhaps be at liberty to say that the city of St. Louis holds its streets in trust for the use of the inhabitants of the state as public highways; that it is bound itself to exercise ordinary care to the end of keeping them in a reasonably safe condition for this purpose; that it can neither negligently permit, nor affirmatively authorize, such a use of them as will create nuisances in them, dangerous to public travel; and that if the proprietors of this new mode of transit cannot maintain their roadways without creating such nuisances in the street, they must answer for damages to travelers injured, or not maintain them at all.
The judgment will be affirmed. Jt is so ordered.