97 Mo. 537 | Mo. | 1888
The plaintiff brought this action against the citjr of St. Louis and The Connecticut Mutual Life Insurance Company, to recover damages for injuries received by her from a fall on a sidewalk in front of a vacant lot on Locust street, in said city, owned by said insurance company, on which she alleges, in her amended petition, the snow and ice had been suffered to accumulate and remain for a long time in irregular and slippery masses causing the same to be unsafe and dangerous to passers thereon.
The action of the court in sustaining the insurance company’s demurrer to the plaintiff’s petition in no way affected the cause of action therein stated against the city. The company thereafter was in court for one purpose only, to take judgment on the demurrer, and had no right to interpose objections upon the trial of the issue of fact joined between the plaintiff and the city on the amended petition of the plaintiff and the answer thereto of the city. The petition not having been demurred to by the city or adjudged insufficient, in whole or in part, as to such defendant, nor any part of it stricken out on motion, it was not necessary that a further amended petition should have been filed under section 3538, Revised Statutes, 1879.
The evidence tended to prove that on the twenty-eighth of February, 1885, while the plaintiff, with her little child, was, with due care, passing over a paved sidewalk, on Locust street, in the city of St. Louis, she fell and broke her leg; that, preceding the accident, snow, from time to time during the winter, had fallen upon the sidewalk, and at the place of the accident had
At the close of the whole evidence, the defendant asked the court to instruct the jury that, on- the pleadings and evidence, the plaintiff could not recover against the city of St. Louis, which the court refused to do, but submitted the case to the jury under instructions and the jury returned a verdict for plaintiff for one thousand dollars, and the city appealed.
It is urged for the appellant that under the provisions of sec. 9, art. 16, of the charter of St. Louis, 2 R. S. p. 1626, the city of St. Louis cannot be held liable in this action because the insurance company was not held liable. That section is as follows:
“Sec. 9. Whenever the city shall be made liable to an action for damages, by reason of .the unauthorized or wrongful acts, or of the negligence, carelessness, or unskilfulness of any person or corporation, and such person or corporation shall also be liable to an action on the same account by the party so injured, the injured party, if he sue the city for damages suffered by him,*541 shall also join such other person or persons or corpora^ tion so liable, if residing in the state, so that they can be served with process as a defendant or defendants in his suit, and no judgment shall be rendered against the city unless judgment is rendered against such other person or corporation so liable to be sued as aforesaid ; and if any action be brought against the city alone, and it "is made to appear that any. person or corporation ought to be joined as a defendant in the suit, according to the provisions of this section, the plaintiff shall be non-suited ; but no person shall be liable under this act to be sued jointly with the city, who would not be liable to be sued separately, irrespective of its provisions. When a judgment shall be obtained against the city and the other party liable as aforesaid, execution shall issue against all the defendants in the ordinary form, but shall first be enforced and collected of the other defendants, and shall not be collected of the city unless the other defendants are so insolvent that the same cannot be made out of them, and- in that case the city shall pay only so much of the judgment as cannot be made out of the other defendants.”
This'contention cannot be maintained. The city is sought to be charged in this case because of its neglect to discharge a duty it owed to the plaintiff as a traveler on one of its public streets over which it. alone had exclusive power and control. It is liable, if at all, because of its own negligence, and not by reason of the negligence of any other person or corporation. “ It is the duty of defendant to keep its streets in a reasonably safe condition for persons traveling thereon.” Kiley v. City of Kansas, 87 Mo. 103. Nor can this duty be evaded, suspended or cast upon others by any act of its own. Russell v. Town of Columbia, 74 Mo. 480; Welsh v. City of St. Louis, 73 Mo. 71.
Conceding that the city has the power to cause obstructions upon the sidewalk to be removed at the
This is not a case wherein the city is made liable by reason of the negligence of another, for which negligence such other person is also liable, does not come within the terms of the charter provisions quoted, and it was not necessary that the insurance company should have been made a party to the suit, or that judgment should be recovered against it, in order that the plaintiff should maintain her action and obtain judgment against the city.
The plaintiff’s petition stated a good cause of action. The evidence tended to prove it. The issue was submitted to the jury on instructions fairly presenting the law of the case, and, finding no error in the record, the judgment of the circuit court is affirmed.