179 Mo. 572 | Mo. | 1904
— This is an action for ten thousand dollars damages for personal injuries sustained by the plaintiff, on November 19, 1898, by his milk wagon running over and being upset by a manhole to a public sewer in Yernon avenue in the city of St. Louis, nearly opposite 4635 Yernon avenue. The plaintiff recovered a judgment for $1,000, and the defendant appealed.
The negligence charged in the petition is that the city constructed and maintained a manhole to a sewer in the street, which projected three feet above the level
The facts afe these: Vernon avenue is only one block long and extends from West End avenue to Walton avenue and is sixty feet wide. About a year before the accident the city had constructed a sewer near the center of the street, preparatory to constructing the street. The top of the manhole was made to conform to the grade of the street when it is constructed, but is about three feet above the level of the street in its present condition. This left a driveway on the north of the manhole eight feet four inches wide, and one on the south of the manhole twelve feet, ten inches wide. When the city finished building the sewer, the appropriation for the improvement of .the street ran out, and the work had to be stopped. .So this condition had existed for about a year before the accident occurred. The plaintiff was employed by the Union Dairy Company as a driver of one of its milk wagons, and had been delivering milk in that neighborhood for over five years, and on Vernon avenue for over a year. He had to deliver milk to a regular customer at No. 4635 Vernon avenue, and an irregular customer on the opposite side of the street. That was the end of his route, and when he delivered milk to these customers he turned and came east again. The manhole stood in the center of the street and nearly opposite to the steps that lead up into the premises No. 4635 Vernon avenue. The plaintiff knew all about the manhole and had seen it and driven around it every day for a year, sometimes west of it and sometimes turning east of it. On the morning of the accident he drove to 4635 Vernon avenue and got out and delivered milk. When he got out of the wagon he hung the reins up on a hook at the top of the wagon, which held
At the close of the plaintiff’s case and again at the close of the whole case the defendant demurred to the evidence, the court overruled the demurrers, and the defendant excepted, and relies solely upon this ruling upon this appeal.
I.
The contention of the defendant is that the city was guilty of no negligence in constructing and maintaining the manhole in the condition shown, but that even if it was its negligence was not the proximate cause of the injury, but that the plaintiff well knew the fact and the condition and was guilty of such contributory negligence as bars a recovery. On the other hand, the plaintiff contends that while he knew of the existence and condition of the manhole and might have seen it and avoided it, still he was not obliged to keep it in mind but had a
The city had a clear legal right to build the sewer, and to leave it projecting three feet above the natural level of the unimproved street, and so that it would conform to the established grade of the street when it was improved. But it took the risk in so doing of some one who was unacquainted with its existence and condition and who was travelling along the street in the nighttime when he could not see the obstruction, running against it and being injured. Such a person would be entitled to recover because as to him the city was negligent and he was not. But the plaintiff does not fall within this rule, 'for he knew all about the manhole, and it was light enough at the time of the accident for him to see it, and by the exercise of ordinary care he could easily have avoided it, just as he had done every day, about the same hour of the day, for a year. It is not clear whether the plaintiff let the horse turn without guidance or whether he directed him, but in either event he is responsible for the wagon striking the mound around the manhole and ‘being upset, for by the exercise of any care whatever he could have avoided it.
It is true, as claimed by the plaintiff, that no one is precluded from traveling on a highway in which he knows there are obstructions or defects and on which he has business, and his knowledge of the condition of the street will not conclusively bar his recovery. [Barr v. Kansas City, 105 Mo. 550; Market v. St. Louis, 56 Mo. 189; Buesching v. Gras Co., 73 Mo. 219; Loewer v. Sedalia, 77 Mo. 431; Staples v. Canton, 69 Mo. 592.]
But whilst this is true, the person who knew of such defects and was injured, must use reasonable care while travelling along such defective street, and that care must increase in proportion to his knowledge of the risk. [Foster v. Swope, 41 Mo. App. 137.] And such knowl
As was well said by Lord Ellenborough, C. J.-: I ‘ A party can not cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. . . . One. person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action —an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. ’ ’ [Butterfield v. Forrester, 11 East 60.]
And this court approved the rule so laid down, in an, opinion per Gantt, P. J., in Sindlinger v. Kansas City, 126 Mo. 315, who, speaking of the rule, said: ‘ ‘ This is the general rule of law as to contributory negligence, which applies, as of course, to actions brought by travellers for injuries received by reason of defects or obstructions upon the highway. [Beach on Contributory Negligence (2 Ed.), sec. 246.] Ordinarily the question whether the plaintiff, under all the circumstances, has been guilty of contributory negligence, is one for the jury. [Loewer v. Sedalia, 77 Mo. 431.] But if the evidence elicited to establish the contributory negligence of plaintiff admits of no other fair inference than that he was negligent and that his own negligence contributed directly to, or was, in other words, the proximate cause of, the injury, then it becomes one for the court, and a demurrer to the evidence will be sustained. ’ ’
The same rule was recognized in Wiggin v. St. Louis, 135 Mo. 558, and in Cohn v. Kansas City, 108 Mo. 387.
The plaintiff in this case knew of the obstruction in the street, and knew that by the exercise of ordinary care he could avoid striking it while travelling along the street. His act in striking it was, therefore, per se contributory negligence. [City of Erie v. Magill, 101 Pa.
The contention of the plaintiff that he had a right to have his mind so engrossed in his business that he did not think of the obstruction or thought he had passed it, is wholly untenable. Persons travelling on a highway are charged with a duty to exercise reasonable care to observe and avoid obstructions and defects. They have no right to be so engrossed in their own affairs as to be negligent of their own safety. As was well said by Campbell, C. J., in Hutchins v. Priestly, etc., Co., 61 Mich. 252, in speaking of a man who walked into an elevator shaft, instead of a door close to it: “The only explanation of his conduct is, what there is no difficulty' in gathering from his own testimony, although he does not seem to be aware of it, that he is one of those persons who pay little heed to their surroundings, and go hither and thither on their errands absent-minded, or thinking only of some particular object and shutting their eyes to everything else. Such inattention is sometimes dangerous to the person himself, and quite as often to his neighbors. It is want of that ordinary care which the safety of society requires all sane persons of mature age to exercise, and for which they are civilly responsible. Business could not be carried on without this requirement.” The rule has recently undergone review in other jurisdictions. In Cowie v. Seattle, 4 Mun. Corp. Cas. 417, the Supreme Court of Washington held that “a person who is perfectly familiar with the condition of a sidewalk in which a defect exists has no right,
In Cloney v. Kalamazoo, 4 Mun. Corp. Cas. 640, the syllabus is as follows:
“In an action for injuries to a pedestrian caused by his stepping into an unguarded excavation made in a crosswalk of a city street in tearing up the pavement of the street for the purpose of repaving, it appeared that plaintiff knew that the work was being done at or near the crossing where the accident occurred, and, having seen the work going forward, must have been aware that such excavations were being made, and, though it was at night, he could have readily seen the excavation before stepping into it, as there was an arc light hanging over the street near such point, besides other lights in the vicinity. Plaintiff testified that he was observing a team at the time, and that he was not aware that the work was being done exactly at the crossing. Held, that a. verdict should have been directed for the defendant city. ’ ’
To the same effect is Dale v. Webster Co., 76 Iowa 370 (where the plaintiff knew of the defect and walked along without looking where he was going); Tuffree v. State Center, 57 Iowa 538 (where the plaintiff drove in one direction and was looking and talking to persons in another direction); Tasker v. Farmingdale, 91 Me. 521 (where the plaintiff was absorbed looking at an electric car and gave no thought to the dangers on the road and drove a wheel of her conveyance over the end of a culvert); Gilman v. Deerfield, 15 Gray 577 (where the plaintiff knew of the defect in the highway and while thinking of something else and temporarily unmindful of the defect drove into it); Nebraska Tel. Co. v. Jones, 81 N. W. 435 (where the plaintiff knew of the defect and while thinking of something else drove over a stump in the road).
In short the rule is supported not only by the almost universal trend of authority, both English and' ‘Ameri
