19 S.W. 938 (Mo. 1892), Franke v. City of St. Louis

Citation:19 S.W. 938, 110 Mo. 516
Opinion Judge:Gantt, J.
Party Name:Franke v. The City of St. Louis et al., Appellants
Attorney:Leverett Bell for the City of St. Louis, appellant. W. C. Marshall, also, for the City of St. Louis. Rowell & Ferriss and J. H. Zumbalen for appellant, Mrs. Webb. Rassieur & Schnurmacher for respondent.
Judge Panel:Gantt, J. Sherwood, C. J., dissenting. Sherwood Sherwood, C. J. (dissenting).
Case Date:June 06, 1892
Court:Supreme Court of Missouri

Page 938

19 S.W. 938 (Mo. 1892)

110 Mo. 516



The City of St. Louis et al., Appellants

Supreme Court of Missouri

June 6, 1892

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon, Judge.


Leverett Bell for the City of St. Louis, appellant.

(1) It was improper to grant a nonsuit as to the defendant Hildreth. (2) The case should have been nonsuited as to the city of St. Louis. (3) It was error to refuse to submit to the jury whether the deceased came to his death by improper treatment on the part of the physicians. (4) The contractor who was restoring the premises at the time of the accident was jointly liable with the other defendants. (5) The question of reasonable care on the part of the deceased should have been summitted to the jury. (6) The damages were excessive.

W. C. Marshall, also, for the City of St. Louis.

(1) The defect in the wall was not a patent one. (2) Res ipsa loquitur. Vincent v. Cook, 4 Hun, 318; Weidner v. Railroad, 41 Hun, 284. "The extent of the duty of the corporation is to use ordinary care in the performance of its duties. It is not, therefore, a general warrantor of the safe condition of its streets." 1 Shearman & Redfield on Negligence, sec. 290. "The corporate authorities are only bound to use reasonable skill and prudence in making the streets and sidewalks safe and convenient for travel. They are under no obligation to provide for everything that may happen upon them, but only for such things as ordinarily exist or such as may be reasonably expected to occur." 2 Dillon on Municipal Corporations, secs. 1015, 1020. (3) The city is not an insurer.

Rowell & Ferriss and J. H. Zumbalen for appellant, Mrs. Webb.

(1) The verdict is so opposed to the weight of evidence, so against the manifest truth of the matter, that it must have been the result of caprice, prejudice, passion or some cause other than the conviction or belief in the truth of the facts and liability of appellant under the law, even as declared by the trial court, and it should not be permitted to stand. Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railroad, 87 Mo. 74; Hipsley v. Railroad, 88 Mo. 348; Garrett v. Greenwell, 92 Mo. 120; Lionberger v. Pohlman, 16 Mo.App. 392; State v. Primm, 98 Mo. 368; Mayor v. Wilson, 9 S.E. (Ga.) 17. (2) The instruction given for plaintiff is erroneous in that it makes no distinction between the liability of the city of St. Louis and of Mrs. Webb for omitting to place barriers in the street. (3) First. The occupant, and not the owner is, prima facie, liable to third persons for damages arising from a defect in the premises. As defendant Hildreth was in joint possession with the contractor at the time of the accident, the court erred in instructing the jury to return a verdict for him. Regina v. Watts, 1 Salk. 357; Staple v. Spring, 10 Mass. 77; Grogan v. Foundry Co., 87 Mo. 321; Tate v. Railroad, 64 Mo. 149; Pinney v. Berry, 61 Mo. 359. Second. The owner of property who has contracted with a builder to erect a building upon it is not liable for the negligence of the contractor or his servants, where entire possession has been surrendered to him. It was, therefore, error to refuse defendant's instruction. Barry v. St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Mo. 538; Clark's Adm'r v. Railroad, 36 Mo. 218; Reedie v. Railroad, 4 Exch. 250. Third. The evidence disclosed that the contractor was a necessary party defendant, and the plaintiff should have been nonsuited for failing to join him. Charter of City of St. Louis, art. 16, sec. 9; 2 R. S. 1889, p. 2143. (4) Under the evidence in this case the damages assessed are entirely unwarranted and excessive. Railroad v. Barker, 33 Ark. 350; Hurt v. Railroad, 84 Mo. 256; Hickman v. Railroad, 22 Mo.App. 351.

Rassieur & Schnurmacher for respondent.

Gantt, J. Sherwood, C. J., dissenting.


[110 Mo. 519] In Banc.

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 twenty-ninth of February, 1888, by the falling of a stone from the front wall of the building number 407, North Fourth street, in the city of St. [110 Mo. 520] Louis, the leasehold of which was owned at the time by Mrs. Rebecca Webb, one of the defendants. Prior to February 5, 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 Hirzog 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 fifteen 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 six feet long, thirty inches wide, and about four 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 drugstore. 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; [110 Mo. 521] 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.


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.

II. Nor can the non-joinder of the contractor, Lynds, as a defendant avail either of these appellants. If they desired

Page 939

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. R. S., sec. 2047. And, moreover, it is not made a ground for new trial, by either of these defendants.

III. 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 [110 Mo. 522] to persons injured in consequence of a neglect of this duty.

"Whenever it is discovered by the officers of the 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 to 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, 87 Mo. 103.

"The ground of the action is either 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 Dillon on Municipal Corporations, sec. 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 over-hanging wall, or unprotected opening upon a sidewalk, upon one of the principal thoroughfares of a great city, was allowed to...

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