Franke v. City of St. Louis

• Citation: 19 S.W. 938,110 Mo. 516
• Parties: FRANKE v. CITY OF ST. LOUIS et al.
• Decision Date: 06 June 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 938

110 Mo. 516

FRANKE v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

June 6, 1892.

DEFECTIVE BUILDING WALLS — LIABILITY OF CITY AND OWNER — POSSESSION — MISJOINDER — WAIVER — EXCESSIVE DAMAGES — CONTRIBUTORY NEGLIGENCE.

1. Plaintiff's son was killed by a stone slab 6 feet long by 30 inches wide and 4 inches thick falling to the sidewalk on the principal street of a large city, out of the front wall between the windows of the fourth floor of a building burned, three weeks before, so that the interior was totally destroyed, the rear and side walls partially destroyed, and the windows and window sills in the front wall burned and charred. A policeman whose beat was by the building testified that he saw it every day, but saw no appearance of danger. One witness testified that, when going by the building a day or two before the accident, he saw very high up, about the fourth floor, a stone in the front wall bulging out considerably, which gave him the impression that it was about to fall. The city building inspector examined the building four times after the fire, — the last time a week before the accident, — and it was apparently safe. One who was contracting to make repairs testified that he carefully inspected the building the day before, and discovered nothing wrong. Held, that there was evidence to go to the jury of an obvious defect by reason of inattention, to which the city, as well as the owner of the leasehold in possession, was liable for negligence. SHERWOOD, C. J., dissenting.

2. The tenant of the burned building paid his rent to the owner of the leasehold, and obtained his acquittance on the day after the fire. Held, that the fact of his engine and boiler remaining in the cellar by sufferance did not give him such possession as to render him liable for not maintaining the building in a safe condition.

3. The tenant having paid his rent and obtained his acquittance, the persons clearing up the building for the insurance company having finished their work three days before, and the contractor having testified that he did not take charge of the building to repair until some time afterwards, it was competent to find that the owner of the leasehold was in possession.

4. Defendants, not having raised by answer or demurrer the necessity of making the contractor a party defendant, waived any objection to his nonjonder.

5. A verdict of $1,846.46 for death of a boy 15 years old, strong, robust, and attentive to business, and already earning $4 a week, cannot be held excessive.

6. The boy having no duty to look after the walls, and having no warning, cannot be charged with contributory negligence.

In banc. Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

Action by Julia Franke against the city of St. Louis and others for the death of her son Judgment for plaintiff against all but one of defendants, and they appeal. Affirmed.

The other facts fully appear in the following statement by GANTT, J.:

The plaintiff, as the sole surviving parent, brings this action for damages caused by the killing of her unmarried minor son, Frederick W. Franke, on the 29th of February, 1888, by the falling of a stone from the front wall of the building No. 407 North Fourth street, in the city of St. Louis, the leasehold of which was owned at the time by Mrs. Rebecca Webb, one of the defendants. Prior to February 5th the three upper stories of the building had been leased to Hugh R. Hildreth, who was made a defendant also, for his printing establishment, and the first floor to Herzog Bros., for a dry-goods store. Fourth street was the principal retail thoroughfare of the city. On February 5, 1888, this building and its contents were burned. The front wall was built immediately on the line of the sidewalk. On the day in question, — February 29, 1888, — three weeks after the fire, plaintiff's son, then 15 years old, and unmarried, was walking north on Fourth street, on an errand for his employer, and, when just in front of the damaged wall, a stone about 6 feet long, 30 inches wide, and about 4 inches thick, fell out of the upper part of the wall, between the fourth-story windows, and injured the boy. While no one actually saw the stone come in contact with him, it is clear from all the evidence in the case, and from the character of the injury to the boy's head, as described by the medical witnesses, that the stone must have struck him a glancing blow. A number of people saw him in the act of falling contemporaneously with the crash of the stone, and carried him to the nearest drug store. He was there revived, and immediately sent home. He complained of pains in his head, and, as was drawn out of the plaintiff and Dr. Bock, on cross-examination by defendant's counsel, stated that a falling stone from a building on Fourth street had struck him. As his condition grew worse the following two days, a surgeon was called in by the attending physician, and an operation was performed on his skull in the hope of saving his life. The surgeon, Dr. Bernays, testified that when he had removed the scalp he was surprised at the horrible fracture of the skull that was presented. The fracture extended clear across. It looked like the injury that would be produced by a blow with the flat side of an axe or board. The testimony showed that at the time of his death plaintiff's son was a strong, healthy boy, earning $4 weekly as an errand boy. Under the instructions of the court the jury returned a verdict in favor of defendant Hildreth, and against defendants Webb and the city of St. Louis for $1,846.46, and both defendants appealed.

L. Bell, for appellant city of St. Louis. Rowell & Ferriss and J. H. Zumbalen, for appellant Mrs. Webb. Rassieur & Schnurmacher, for respondent.

GANTT, J., (after stating the facts.)

The contention of both the appellants, that the circuit court erroneously sustained the demurrer to the evidence by the defendant Hildreth, is wholly without merit, whatever significance is given to section 9 of article 16 of the scheme and charter of St. Louis. The mere fact that by the sufferance of Mrs. Webb his engine and boiler remained in the cellar did not give him such a possession of that building as to render him liable for not maintaining it in a safe condition. His lease was terminated, his rent was paid, and neither he nor his employes were in possession.

2. Nor can the nonjoinder of the contractor, Lynds, as a defendant, avail either of these appellants. If they desired to get the opinion of the court as to the necessity of making said contractor a party, it was clearly incumbent upon them to do so, either by demurrer or answer; and, having failed to do either, the objection was waived, (Rev. St. § 2047;) and, moreover, it is not made a ground for new trial by either of these defendants.

3. Whatever the rule may be in other states, the law in this state requires that cities and towns shall keep their streets and sidewalks in a condition reasonably safe for the public, and they are liable in damages to persons injured in consequence of a neglect of this duty. "Whenever it is discovered by the officers of a city that a structure exists in the sides of one of its streets, so unsafe as to endanger the lives or persons of those passing over and along the street, the duty either to remove it or make it safe and secure at once arises, and this duty cannot be shifted from the city to another so as to relieve it from liability for injuries occasioned by it." Grogan v. Foundry Co., 87 Mo. 321; Kiley v. City of Kansas, Id. 103. "The ground of action is negligence, either in positive misfeasance on the part of the corporation, its officers or servants, or by others under its authority, in doing acts which cause the streets to be out of repair, in which case no other notice to the corporation of the condition of the street is essential to its liability; or the ground of the action is the neglect of the corporation to put the streets in repair, or to remove obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, in which cases notice of the condition of the street, or what is equivalent to notice, is necessary, as will presently be stated, to give to the person injured a right of action against the corporation." 2 Dill. Mun.Corp. § 1020. It is not possible to state a rule of notice that would apply to every case in advance. Each case must depend upon its own peculiar facts and circumstances. When the dangerous obstruction or abutting building is in a small village, or on a retired or secluded street, the inattention of the town or city authorities for several weeks might not amount, of itself, to negligence; and, on the other hand, if a dangerous overhanging wall or unprotected opening upon a sidewalk upon one of the principal thoroughfares of a great city was allowed to stand even a day without barricades or danger signals, it would furnish sufficient evidence to justify a jury in finding notice. Negligence is necessarily a relative term. What would be care in a village of a few hundred inhabitants, with now and then a passer-by, would be gross negligence if permitted in a city of a half million inhabitants, with its throng of busy people, constantly moving along its streets and sidewalks, intent upon business or pleasure, relying upon the city authorities to give notice or warning of danger. Carrington v. St. Louis, 89 Mo. 208, 1 S. W. Rep. 240. In 2 Shear. & R. Neg. § 369, it is said: "For practical purposes, the opportunity of knowing in such cases must stand for actual knowledge, and therefore, where open defects in a sidewalk have existed for a considerable time, notice of them is implied, and is imputed to those whose duty it is to repair them; in other words, they are presumed to have notice of such defects as they might have discovered by the exercise of reasonable diligence. Such notice may be imputed also where a defect, though temporary, has been...