Norton v. City of St. Louis

• Decision Date: 18 March 1889
• Citation: 11 S.W. 242,97 Mo. 537
• Parties: Norton v. The City of St. Louis, Appellant
• Court: Missouri Supreme Court

11 S.W. 242

97 Mo. 537

Norton v. The City of St. Louis, Appellant

Supreme Court of Missouri

March 18, 1889

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

Leverett Bell for appellant.

(1) Revised Statutes, section 3538, made it incumbent on the plaintiff below to file an amended petition, after the demurrer of the co-defendant was sustained. And no amendment having been made, it was the duty of the circuit court, when the case was called for trial, to proceed as if there was no petition in the case; and the objections made at that time by both of the defendants to the trial of the cause and to hearing any testimony, should have been sustained. (2) The city of St. Louis is not liable under the evidence in this cause, and the court below should have so in structed the jury. Kaveny v. Troy, 11 Cent. Rep. 342; Springer v. Philadelphia, 11 Cent. Rep. 401; Kinney v. Troy, 11 Cent. Rep. 454. (3) The city of St. Louis is not liable in this action except in case where the Connecticut Mutual Life Insurance Company is also liable. Sec. 9, art. 16, Charter of St. Louis, 2 R. S., p. 1626.

A. R Taylor, J. P. Dawson and E. C. Meservey for respondent.

Brace J. Barclay, J., not sitting.

OPINION

Brace, J.

The plaintiff brought this action against the city 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.

By an ordinance of the city, all persons are required to keep the paved sidewalks in front of their premises "swept and clear of mud, dirt and filth and after any fall of snow to cause the same to be immediately removed from said sidewalk into the carriage-way of the street." The defendant insurance company demurred to the petition, and its demurrer was sustained. There after the city filed its answer to the amended petition, and the case coming on for trial on the petition and the city's answer, the defendants objected to the jury being sworn and the trial proceeding, on the ground that there was no petition in the case. This objection being overruled, they then, for the same reason, objected to the introduction of any evidence, which objection was also overruled. To these rulings of the court, the defendants excepted.

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 been suffered to remain and accumulate thereon, up to that date; that a pass-way two or three feet wide had been beaten through the snow by persons going to and fro over the sidewalk, in which, from the thawing and freezing of the snow and the tramping over it, a rough, uneven surface of ice had been formed, rendering such pass-way uneven, slippery and dangerous to passers thereon; that plaintiff slipped on this ice, and by reason thereof, while endeavoring to make her way over this rough icy pathway, fell and broke her leg; that the sidewalk had been in this bad condition nearly all winter, and no effort had been made to remove the snow and ice accumulated thereon; that its condition was known to the city authorities, or might have been known to them by the exercise of reasonable care and diligence, in time to have had the snow and ice removed, and said sidewalk rendered reasonably safe for travelers before the accident occurred.

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 ...