174 Mo. 270 | Mo. | 1903
This is an action for damages for personal injuries. There was a verdict for three thousand dollars, and the defendant appealed. The constitutionality of the jury law is called in question, and that gives this court jurisdiction.
The negligence charged on the petition is:
“That at or near.the intersection of Euclid avenue and defendant’s right of way in the city of St. Louis the defendant at the times herein mentioned was maintaining a platform to enable passengers to- get on its cars bound east; that in the said platform, which was of granitoid, there was a stump about eleven inches in height and defendant was negligently maintaining said platform at said times with said stump therein, which was a dangerous obstruction to passengers intending to get upon defendant’s cars from said platform; that on*273 January 1, 1900, the plaintiff was upon said platform, intending to become a passenger upon defendant’s eastbound car, and whilst she was signaling the car to stop for her as .a passenger her foot struck said stump and she fell from said platform upon defendant’s track and was struck and dragged by defendant’s east-bound car and was thereby greatly and permanently injured.” '
The answer is a general denial and a plea of contributory negligence.
The case made is this: the parties stipulated that in 1857 Charlotte Lay dedicated to the county of St. Louis a strip of land eighty feet wide running north and south as a public road, and called it Lay avenue. At that time there was no- railroad there. Subsequently the narrow-gauge railroad was built and it crossed the said road. The defendant is the mesne grantee of that railroad, and operates a street railroad across said strip of land. When the city limits were- extended so as to embrace this territory, the city changed the- name to Euclid avenue. At that time the street was an unimproved dirt road, and there were no sidewalks. At a time not disclosed by the evidence, the Missouri-Edison Electric Lighting Company placed one of its poles in the sidewalk on the east side of said Euclid avenue. The pole was about twelve inches in diameter, and stood a little to the right of the middle of the sidewalk. The defendant owns its own right of way, but of course does not own the street. It only crosses the street by permission. The pole stood' entirely within the lines of the street and no part of it was upon the defendant’s right of way. Formerly, for the convenience of the traveling public, the defendant constructed a wooden platform, seven or eight yards in length and three or four feet wide and which ran parallel with its tracks, and which was partly upon its right of way and partly upon the sidewalk, in fact extending across the sidewalk on the east side of Euclid avenue. The pole aforesaid being already there, the platform was built around the
For the plaintiff the. court gave the following instructions which are claimed to be erroneous:
“If the jury find from the evidence in this case that the defendant on January 1, 1900, was a carrier of passengers for hire by street railroad, and as-, such had erected and was maintaining the platform mentioned in the evidence for the purpose of receiving passengers therefrom bound east from Euclid avenue, then the defendant was bound in duty to exercise ordinary care to keep said platform reasonably secure and safe for passengers who should be thereon for the purpose of entering defendant’s cars therefrom; and if the jury find from the evidence that, on said, day there was existing in said platform a stump of a post extending above the surface of said platform, and that, said stump in said platform made it dangerous for persons on said platform for the purpose of entering upon defendant’s cars ■as passengers; and if the jury -further find from ’the evidence', that defendant did not exercise ordinary ca,re in maintaining said platform for passengers in such condition; and if the jury further find from the evidence that on said day the plaintiff was on the said platform for the purpose of becoming a passenger upon defendant’s east-bound car, and that whilst so upon said platform for said purpose she stumbled over said stump and was thereby caused to fall and be injured by defendant’s car; and if the jury believe from the evidence that the plaintiff was exercising ordinary care at the time of her injury, then the plaintiff is entitled to recover, although said stump or the post of which it was a stump had been planted in said place by some other person or corporation than the defendant.
*276 * ‘ 3. The court instructs the jury that the mere fact that the plaintiff knew that the stump mentioned in the evidence existed in the platform, and that she stumbled over it (if she did stumble over it) and was injured, will not defeat a recovery in this case. ’ ’
At the close of the plaintiff’s case and also at the close of the whole case the defendant asked peremptory instructions to the jury to find for the defendant and also asked other instructions which, in the view taken of the case, it is unnecessary to set out or refer to-.
I.
The plaintiff predicates a right to- recover solely upon the charge that the defendant maintains the stump in the granitoid platform.
The stump is within'the lines of a public street, and not upon the defendant’s property. It.was placed there by the lighting company, and the defendant had nothing to do with its being placed there. It is on public property, and the defendant is under no- duty, and has no right, to remove it. The defendant built a wooden platform,, and left the stump projecting above it, on the public highway,, for the benefit of the traveling public. It was under no duty to. build the platform. Subsequently it replaced the wooden platform with a granitoid platform. This is the sum of its offending. Tet it is supd and a recovery had against it on the charge and theory that it maintains the stump in the platform and that this makes-it dangerous.
Webster’s International Dictionary defines “maintain” to mean “1. To- hold or keep in any particular state or condition; to support; to sustain; to uphold; to keep up; not to suffer to fail or decline. 2. To keep possession of; to hold and defend; not to surrender or relinquish. 3. To continue; not to suffer to cease or fail. 4. To bear the expense of; to support; to keep up; to supply with what is needed.”'
If an owner raises up, or permits any one else to do so, or keeps up or fails to remove a nuisance on his own premises by which any one suffers injury, he is liable, because he violates his duty as a citizen. If any one creates a nuisance on a public highway, he is primarily liable to any one who is injured thereby, because he has violated his duty as a member of society and has been guilty of a wrongful act for which he is primarily liable. But no citizen is under any personal, legal obligation to remove a nuisance from a public highway, notwithstanding he may know it is calculated to do injury to a traveler on the highway if it is allowed to remain there. To make any man liable for a tort he must have done or omitted to do a duty imposed upon him by law. In the absence of such a duty there is no liability. The law imposes no duty upon the defendant to remove a nuisance in a public highway, which it did not put there, and has nothing more to-do with than any other citizen. The building the platform around the stump neither increased nor diminished the danger. The proximate cause of the accident in this case was the stump.' The platform in no way had anything to do with the accident. The proximate cause would be the same whether there hadheena platform there or whether it had been allowed-to remain a dirt walk,-as-it was-when the pole "yas
All of the adjudicated cases wherein a citizen has been held liable for an obstruction or nuisance in a highway, have been cases where the person held liable placed, the obstruction or nuisance on the highway or was under some duty to remove it. [Schweickhardt v. St. Louis, 2 Mo. App. 571; Waltmeyer v. Kansas City, 71 Mo. App. 354; Donoho v. Vulcan Iron Works, 75 Mo. 401; Wiggin. v. St. Louis, 135 Mo. 558; Grogan v. Foundry Cog 87 Mo. 321; Merrill v. St. Louis, 83 Mo, 244, l. c. 255; Campbell v. Pope, 96 Mo, 468.]
Of course if one creates the nuisance and another adopts it and continues it, and keeps it up, as where one constructs a coal hole in a sidewalk and another uses it and maintains it, both are liable. [Merrill v. St. Louis, 83 Mo, l. c. 255, 256.]
The general rule is thus stated in 2 Smith’s Modern Law of Municipal Corporations, section 1525: “The general rule is that the primary duty to keep' highways and streets in repair rests upon the municipal corporations within whose limits they are, this duty being implied in the acceptance of a charter from the State. Such duty is not discharged by the fact that a duty is also imposed upon abutting owners to keep the highway in repair in front of their land. A lotowner’s obligation to repair streets or sidewalks does not exist at common law, but is statutory or arises from contract. It seems well settled that the neglect of an abutting owner to keep the sidewalk in repair and to keep it free from snow and icé, as required by a city ordinance, does not
This defendant never caused this defect in the sidewalk, never adopted it, used it, continued it, .or maintained it. It did not remove it, it is true, but it owed no duty to the city or its citizens to remove it. It was neither the active, primary or remote cause of its being there, and it did not keep it there for its own use or benefit or at all. It simply left it where it found it, and let it remain in no more dangerous condition than it was when it found it.
It follows that the defendant is not liable for the plaintiff’s injuries, and the trial court should have so peremptorily charged the jury. The judgment of the circuit court is therefore reversed.