79 Mo. App. 459 | Mo. Ct. App. | 1899
This is an action brought by the father for alleged loss of service, expense of doctors’ bill, nursing, etc., of his minor son consequent upon certain personal injuries inflicted by the alleged negligence of the defendant. Plaintiff had a verdict and judgment below for $250 and defendant appealed.
It is for the parent’s loss of this boy’s services, medical attention, etc., the present action was instituted. The negligence .alleged is “that said pile of girders were so placed and negligently left upon the aforesaid street as that the top one of said pile of girders was left in a loose and toppling condition, so that if any person legally and rightfully upon said street at said point should step upon or touch the same it was likely to and might fall upon such person and thereby damage him,” etc.
A reasonable necessity for the temporary deposit of this iron building material must be conceded to exist in this particular case. The law will encourage improvement and the public convenience must yield to such temporary obstructions. The above quoted text of Judge Dillon may be treated as a syllabus of the decided cases. See Clark v. Fry; 8 Ohio
That portion of Eleventh street occupied and used by defendant and other contractors of the Altman building, had been withdrawn from the public use and ample notice thereof was given by barricades and fencing. Said portion of the street had for the time being ceased to be a thoroughfare for the traveling public. Stephens v. City of Macon, 83 Mo. loc. cit. 352. Defendant was under no obligation therefore to keep said space in proper condition for use by the traveling public, or as a play ground for plaintiff’s boy. Defendant was not bound to anticipate the presence of the lad at a place where he had no right to be. If defendant should be held liable in this case then with equal propriety might the contractor have been chargeable for injuries received by any one going upon that portion of the street and coming in contact with the lumber or brick there stored, or by falling into the mortar beds. But this can not be. Eor as already stated, that portion of the street was temporarily withdrawn from public use, and the contractor could no more be héld for the-injuries so received by an intruder than if they had occurred from going into the unfinished building and falling between the unfloored joists therein. In short we fail to discover anything in this evidence even tending to prove that defendant was guilty of negligence, or failure to exercise proper care
On the undisputed facts then, ■ we think the plaintiff failed to make a case for the jury. The judgment will be reversed.