139 Mo. 127 | Mo. | 1897
This is an action for damages for personal injuries alleged to have been caused by the -dangerous and defective condition of a street in St. Louis, by which plaintiff was thrown from his wagon, and his leg broken.
The plaintiff was and is a farmer residing about ten miles west of St. Louis. On the twentieth day of November, 1893, he drove a team of well broken, gentle mules, hitched to a two-horse wagon, to the city for a load of cement, which he was to haul to Kirkwood. At a point on Chouteau avenue where it crosses the St. Louis & San Francisco Railway there is an iron bridge which passes over the railroad, which forms a part of the roadway and traveled surface of said street. This bridge has wooden floors which are laid crosswise or “skew,” so that when a wagon passes over it the wheels do not leave the floor of the bridge at the same time, but as the wagon goes west the north wheel leaves the floor first and then the south wheel. This bridge has a partition in the center, so that wagons going west pass on the north roadway, and those going east on the south roadway of the bridge. As plaintiff came into the city in the morning he drove over this bridge and noticed that at the west end of the bridge, where the wooden floor terminated and the macadam of the street began, there was a hole or abrupt depression in the macadam of the depth from six to ten inches, according to the judgment of differ
,e says he would have tried to go over on the car track. He could have got the right hand wheel on the
The cause was tried to the court, both sides waiving a jury.
The court gave the following declarations of law at the request of defendant:
“1. The court declares the law to be that even if the city was negligent in allowing a depression to remain at the west end of the bridge, after it knew there was such a depression, or by the exercise of reasonable care could have learned such fact, yet plaintiff is not entitled to recover unless such depression was the proximate cause of the injury complained of in this case.
“2. The court declares the law to' be that if the street, at the point mentioned in the other instructions, was in a reasonably safe condition for a person exercising ordinary care to safely pass over the same, then the city is not liable, even though some intervening, efficient, accidental cause operated to produce the injury to plaintiff; that is, that an accidental cause can not increase the liability of the city so as to make it liable under the extraordinary circumstances caused by the*134 accidental cause supplementing the condition of the street which did not amount to negligence, without said accidental cause.”
The court refused the following declarations of law:
“1. The court declaresthe law to be that upon the evidence adduced the plaintiff is not entitled to recover and the judgment must be for defendant.
“2. The court sitting as a jury declares the law to be that if plaintiff could have safely passed along Chouteau avenue between Vandeventer avenue and Tiffany street on the twentieth of November, 1893, by the exercise of ordinary care, notwithstanding the existence of a depression, if such there was, at the west end of the railroad bridge, and that plaintiff’s injury was caused by his team taking fright at a locomotive and train of cars passing under the bridge while plaintiff was crossing the bridge, then the existence of such depression was not the proximate cause of the injury to plaintiff, and plaintiff is not entitled to recover.
“3. The court declares the law to be that if the plaintiff could have safely passed along Chouteau avenue between Tiffany street and Vandeventer avenue, by the exercise of ordinary care, under ordinary circumstances, and that the injury to plaintiff was occasioned by his team taking fright at a locomotive and train of cars passing under the bridge while plaintiff was crossing over the same, in consequence of which plaintiff lost, or partially lost, control of his team and the team passed over the point of the street which was safe under ordinary circumstances, but which might not be safe when passed over at a high rate of speed by a team which had gotten beyond the control of the driver, and that plaintiff’s injuries were occasioned by this extraordinary condition, then plaintiff is not entitled to recover in this ease.
*135 “4. The court declares the law to be that it is not the duty of the city to keep its streets in such a condition that accidents may not happen to persons driving over the same when such driver has lost control of his team, but that the duty of the city is confined to seeing that its streets are in a reasonably safe condition for persons to safely pass over the. same by the exercise of ordinary care under ordinary circumstances.”
Thereafter the court entered judgment for the plaintiff for $1,500, and defendant duly excepted at the time.
Defendant filed its motions for new trial and in arrest, which, being overruled, the case was appealed to this court.
I. By section 26, article 3, of the scheme and charter of the city of St. Louis, that city is empowered to establish, open, vacate, alter, widen extend, pave, or otherwise improve and sprinkle all streets, avenues, etc., and provide for the payment of the costs and expenses thereof in the manner in the charter prescribed and to construct and keep in repair all bridges, streets, etc.
Whatever may be the law in other States, there can be no doubt that municipal corporations in Missouri are bound to keep the streets and highways in a proper state of repair, free from obstructions, so that they will be reasonably safe for travel; and if they neglect to do this, they will be held liable for all injuries happening by reason of their negligence. As said by Sherwood, C. J., in Welsh v. City of St. Louis, 73 Mo. 71, “that such a duty, such an obligation, belongs to the city, and is a continuing obligation, which can not be shirked or shifted to the shoulders of another, is well settled in this State.” Blake v. St. Louis, 40 Mo. 569; Bowie v. City of Kansas, 51 Mo. 454; Bassett v.
It must also be taken as established law in this State that it is not necessary to a recovery against a municipality that its neglect to keep its street in repair shall be the sole cause of an injury, but the plaintiff or injured party may recover where he or she is in the exercise of ordinary care and prudence and the injury results partly from the defective street and partly from an accident, unconnected with the defect in the street, for which neither the city nor the plaintiff is responsible. In Brennan v. St. Louis, 92 Mo. 482, the cases are reviewed in these words: “Cases are to be found where it seems to be held, under like circumstances, that, in order to recover, it must be proved that the injury was occasioned solely by the neglect of the defendant (city), and not the neglect of the defendant, combined with some accidental cause. But this court in discussing a like question in Bassett v. St. Joseph, 53 Mo. 290, loc. cit. 300, said: “It is true, that if it had not been for the attempt of the mule to kick, the injury might not have occurred; and it is equally true, that if there had been no excavation at hand, the kicking of the mule would have been harmless.77 And.further on the conclusion is reached, that if the plaintiff was without fault she would have a right to recover, notwithstanding the cause contributing to the injury was the attempt to the mule to kick plaintiff, and she, in attempting to protect herself, fell or jumped into the excavation. The same principle, that the plaintiff may recover when he is in the exercise of ordinary care and prudence, and the injury is attributable to the defective street, with some accidental cause, was again asserted in Hull v. Kansas City, 54 Mo. 598, and must be taken as established law. So that if the street in this case was defective, as the court evidently found it was, and that defective
The learned city counselor argues that Hull v. Kansas City, 54 Mo. 598, was overruled by Brown v. Glasgow, 57 Mo. 156. We do not so understand that case. On the contrary, it is predicated upon two principal facts, to wit, the fact that the driver wholly lost control of or abandoned his team, and the fact that the highway was ample and sufficient for all usual travel thereon and the defect was not in the traveled portion of the street. The court in that case cited Bassett v. St. Joseph and Titus v. Northbridge with approval. As was pointed out in Bassett v. St. Joseph, Titus v. Northbridge was confined to cases where the horse or team becomes wholly uncontrollable, so that the driver can not direct his course, and he, in this condition, comes in contact with a defect in a street or highway by which an injury is occasioned; and the city is not liable unless it appears that the injury would have occurred if the horse had not become uncontrollable; and it was expressly said in that case, “that a horse is not to be considered uncontrollable that merely shies or starts or is momentarily not controlled by his driver.” In this case the evidence clearly indicates that this was nothing more than the shying or momentary fright of a gentle team and no doubt but for the hole plaintiff would have readily recovered control of them. This is the construction put upon Titus v. Northbridge by the Supreme Court of Massachusetts in subsequent decisions and the general rule elsewhere. Babson v. Rockport, 101 Mass. 93; Wright v. Templeton, 132 Mass. 49; Hinckley v. Somerset, 145 Mass. 326; Hey v. Philadel
But, independent of whether Brown v. Glasgow is in conflict with Hull v. Kansas City, counsel for the city insists that those cases have no proper application here, because plaintiff’s petition concedes that the street was in a reasonably safe condition. If this be true it must end the discussion, ast,he plaintiff must be held conclusively estopped to deny the allegations of his own pleadings.
A reference to the petition must determine the correctness of defendant’s assumption. The petition avers that the street “was defective, out of repair and dangerous to persons driving or traveling with vehicles along and upon Chouteau avenue;” that “there was at said time a hole or depression in the macadam or gravel roadbed of said Chouteau avenue of the depth of ten inches and the width of twelve inches and the length of twenty inches;” “that said hole was so situated and of such dimensions as that persons passing westwardly on said bridge were compelled to pass over or very near the same and that there was danger to the lives and property of the public traveling upon said street;” that “but for the presence of said hole, notwithstanding the speed at which his mules were going and the fact that they were partially beyond his control (these two conditions being referrable to the sudden blowing off of the steam by the engine under the bridge) he would have passed off said bridge and escaped injury or danger to himself.” These allegations of a defective street without doubt state a case of negligence but in the remaining sentences of the petition plaintiff, evidently to show he was not guilty of contributory negligence which would bar his recovery, made this allegation: uThat notwithstanding the fact that said hole was a nuisance and a source of danger to
Moreover, it is one thing to admit that a street is or was in a reasonably safe condition for public travel and another to state it was in a dangerous and unsafe condition, and yet a party might even in its unsafe condition pass safely over it by the exercise of great care if no other adverse circumstance intervene.
We think the clause relied upon by defendant must be read with the remainder of the petition, and when so read it simply means that plaintiff, but for the unexpected and accidental occurrence of the sudden discharge’ of steam and smoke under the bridge, expected to pass safely over the defective and dangerous hole in the street; that in his opinion, while a nuisance and a dangerous defect in the highway, it was not so necessarily dangerous that by the exercise of great care and prudence he could attempt to pass it without being guilty of contributory negligence in so doing. In a word, the plaintiff did not admit the street was in a safe condition for travel, but did admit that notwithstanding the dangerous condition in which he alleged it was, he thought by the exercise of great care he could pass safely over it. It follows that there is no such premise as assumed by. defendant, upon which he
There was no error in refusing the other instructions asked by defendant. Those given at its request covered the real questions in the case. The second refused instruction was erroneous in declaring that the defect in the street could not be a proximate cause of the injury if plaintiff could have passed the hole by the exercise of ordinary care. If as it would seem this was an effort to define proximate cause, it is not tenable. If it was an attempt to define the city’s liability, no error was committed in refusing it as that had already been done in the instructions given for defendant. The third and fourth refused instructions were properly refused because they recite a state of facts not in evidence.
The cause was clearly one for a jury and was fairly tried and the verdict seems to be very reasonable under the evidence.
The judgment is affirmed.