2 S.W. 481 (Mo. 1886), Brennan v. City of St. Louis

Citation:2 S.W. 481, 92 Mo. 482
Opinion Judge:Black, J.
Party Name:Brennan v. City of St. Louis, Appellant
Attorney:Leverett Bell for appellant. O. G. Hess for respondent.
Case Date:December 20, 1886
Court:Supreme Court of Missouri
 
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Page 481

2 S.W. 481 (Mo. 1886)

92 Mo. 482

Brennan

v.

City of St. Louis, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from St. Louis Court of Appeals.

Affirmed.

Leverett Bell for appellant.

(1) The plaintiff should have been non-suited. From the testimony given by the only witness who saw the accident, it is clear that the condition of the street was not the cause of the injury. The plaintiff, an infant of three years of age, was thrown down by a companion, who ran, or fell, against her. Both children fell to the ground, the plaintiff being underneath, and receiving injury. The condition of the street did not contribute to produce the injury. The injury would have been sustained, under the circumstances of this case, if a pavement absolutely perfect had existed on the street. No amount of care on the part of the city government, no pavement that was ever devised, can prevent a child three years of age from sustaining injury on being thrown to the ground. The injury is such as would undoubtedly have been sustained in the house on an even floor, if the collision between the children had happened there, instead of on the street. In other words, the condition of the street did not produce, nor tend to produce, the injury to the child. (2) The circuit court erred in permitting the plaintiff's counsel, in his closing argument to the jury, to maintain that the testimony showing that the city had repaired the place where the accident happened, after it occurred, was to be construed by the jury as establishing that said place needed to be repaired; and the court also erred in admitting said testimony in the first instance. (3) The circuit court erred in refusing the defendant's instruction numbered three. Section 9, of article 16, of the charter of St. Louis (2 R. S., p. 1,626) required that Sadie Mullen, the person who was the direct and primary cause of the injury, should be a co-defendant with the city herein. It was given in evidence that she was alive, and was a resident of St. Louis, and that process could have been served on her. The failure to join her as a co-defendant with the city was a fatal error. (4) The court erred in refusing to give defendant's instruction numbered two. The defendant is not liable for failure to keep in repair an unimproved street, one existing in a state of nature, as was shown by the testimony to be the condition of the street where the plaintiff was injured. Bassett v. St. Joseph, 53 Mo. 303.

O. G. Hess for respondent.

(1) There was no error in the admission of evidence tending to prove that the defect complained of was repaired by the city after the accident occurred. There was no pretense that it was offered for the purpose of proving negligence on the part of the city, but it was offered solely for the purpose of showing that the defect in the street was one which the city recognized as being one which it was bound to repair, and also to show acceptance of the dedication of the...

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