Searcy v. Noll Welty Lumber Co.

243 S.W. 318 | Mo. | 1922

Lead Opinion

Action for personal injuries. On September 22, 1917, plaintiff, while riding in an automobile truck along one of the public thoroughfares of Kansas City, was thrown from the vehicle and injured by its running against a pile of coal. It was after dark, about 8:30 p.m., when the accident occurred. The truck was at the time coasting down hill, with the power shut off, causing the headlights to be so dim that they threw but little if any light on objects ahead. The coal was piled in the street along the curb adjacent to the premises of one Bowen. No barriers were placed about it; on account of shade trees rays from the street lights did not reach it; and no warning lights were displayed.

The coal belonged to Bowen, but it had been deposited in the street by defendant. On the morning of the day on which the accident occurred Bowen gave defendant, which was engaged in selling coal at retail, an order for five tons. Two loads of 5,000 pounds each were hauled to Bowen's residence during the day, the last one reaching there about 2:30 in the afternoon. The first load was deposited in the street at the place heretofore indicated, under Bowen's direction, and the second was piled on top of the first under his further direction. Upon the delivery of each load, in the manner just stated, he gave defendant's driver a receipt therefor. An ordinance of Kansas City provided: "Every person who shall . . . leave any part (of any street) obstructed with rubbish, building or other material during the night time, shall cause the same to be enclosed with good, substantial and sufficient barriers not less than three feet high, and shall cause one red light to be securely and conspicuously posted in or near such . . . obstruction."

The petition counted on both common-law negligence and a violation of the ordinance. The gist of the first was: the placing of the pile of coal in the street and allowing it to remain there after dark without having erected barriers and posted warning signals. The ordinance violation alleged was merely the leaving of the obstruction in the street during the nighttime without having erected barriers and displayed the prescribed signal.

The answer tendered the general issue and that of contributory negligence.

There was a directed verdict for defendant. From the judgment rendered thereon plaintiff appeals.

I. The claimed negligence on which appellant predicates a right of recovery was the placing of the pile of coal in the highway and leaving it there after dark unguarded and without warning lights. Defendant'sCommon-Law liability depends upon its connection withNegligence: Easement these two distinct acts, the one ofof Access. omission and the other of commission, and the legal consequences flowing from such connection. With respect to the first there can be no doubt but that Bowen had the right to use the street as a place of delivery of the coal. This right grew out of the easement of access which he enjoyed as an abutting proprietor, and which was separate and distinct from that of the public. [Press v. Penny Gentles,242 Mo. 98, 103.] The general doctrine is aptly expressed in the following passage from Judge Dillon's work which has been frequently quoted with approval:

"It is not every obstruction, irrespective, of its character or purpose, that is illegal, even although not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations and restrictions. The carriage and delivery of fuel, grain, goods, etc., are legitimate uses of a street, and may result in a temporary obstruction to the right of public transit. . . . Temporary obstructions of this kind are not invasions of the public easement, but simply incident to or limitations of it. They can be justified when, and only so long as they are, reasonably necessary. There need be no absolute necessity; it suffices that the necessity is a reasonable one." [2 Dillon on Munic. Corp. (4 Ed.) sec. 730.] In an early Pennsylvania case it was said:

"Necessity justifies actions, which would otherwise be nuisances. This necessity need not be absolute; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, brick, lime, sand and other materials may be placed in the street, provided it be done in the most convenient maner, and be not unreasonably prolonged." [Commonwealth v. Passmore, 1 Serg. R. 217.]

If Bowen had the right to have the coal delivered to him in the street it follows as of course that defendant had the right to make the delivery there, and in so doing violated no duty it owed the public. There is no contention that the coal was negligently piled or that it occupied an unreasonable portion of the street.

II. Notwithstanding the right of an abutting proprietor to temporarily occupy a portion of the street when necessary, municipal authorities may impose reasonable conditions upon such use. [Stephens v. Macon, 83 Mo. 345.] InViolation of Ordinance: conformity with such authority KansasComplete City by ordinance required that buildingDelivery. or other material, left in the street during the nighttime, should be inclosed with barriers and should have warning lights posted near it. Was it the duty of defendant when it deposited the coal in the street, or subsequently, to have erected the barriers and posted the lights which the ordinance required if it was to be left there during the night? When Bowen requested defendant to unload the coal in the street the latter had no reason to anticipate that the former would leave the coal there until after dark, or if he did so, that he would fail to safe-guard the public against the danger arising from the obstruction caused thereby. On the contrary, defendant had the right to assume that Bowen would fully discharge his duty in the premises. Nor was it incumbent upon defendant after the delivery of the coal, upon the approach of darkness, to go and see whether Bowen had removed it from the street, and if not, whether he had erected barriers and posted lights. The delivery completed the sale. Thereupon title and dominion passed from defendant to Bowen. The property was then Bowen's. It was in his possession and custody, and he alone was responsible for its remaining in the street, and for the conditions under which it remained there.

It seems entirely clear, that defendant by depositing the coal in the street at Bowen's direction, even though it did not place barriers around it and post lights near it, did not breach any legal duty it owed plaintiff or other possible users of the highway; that leaving the coal in the street after dark unguarded was the proximate cause of plaintiff's injury, and for that defendant was in no way responsible. [Saxon v. Transfer Co.,145 Mo. App. 693.]

The judgment of the trial court is affirmed. Small, C., concurs; Brown, C., absent.

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Addendum

The foregoing opinion by RAGLAND, C., is hereby adopted as the opinion of the court. All of the judges concur.