Hinds v. City of Marshall

Decision Date10 May 1886
Citation22 Mo.App. 208
PartiesSARAH E. HINDS AND HUSBAND, Respondents, v. CITY OF MARSHALL, Appellant.
CourtMissouri Court of Appeals

APPEAL from Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remandea.

Statement of case by the court.

This is an action for damages for personal injuries received by plaintiff, Sarah Hinds, by falling into a ditch on one of the streets of the defendant, a municipal corporation. Suit was brought in the Saline circuit court. On a trial there had before a jury, the plaintiff was awarded one cent damages. The court granted a new trial; and, on application of plaintiff, a change of venue was awarded to the Lafayette circuit court, where the plaintiff recovered judgment for the sum of fifteen hundred dollars. From this judgment the defendant prosecutes this appeal.

The petition avers that the plaintiffs are husband and wife, and the defendant is a municipal corporation of the fourth class; that, as such corporation, it has jurisdiction and control over its streets, and it is its duty to keep the same in good and safe condition for travel, etc. Among its streets is one designated as Lafayette street; and on or about the twenty-first day of August, 1883, the defendant dug a ditch across said street, where it intersects Yerby street, which ditch was about three feet deep and four feet wide; that defendant, disregarding its duty, left said ditch uncovered and unguarded, without anything to warn passers of its condition; and that on the night of the twenty-first day of August, 1883, the plaintiff, Sarah Hinds, while passing along said street, in the exercise of due care, fell into said ditch, by reason of its unsafe and dangerous condition; whereby she was greatly injured, etc.

The answer, inter alia, interposed, as a special defence, that said ditch was not so deep and wide as alleged; and that the same was so dug, not across said street, but along side of the same, pursuant to the directions and plans devised therefor by the street commissioner of the defendant; and was designed to drain off the surface water running on said street; that the same was dug on the side of the street, leaving ample room, of about forty feet, for persons to pass along the street, without any necessary exposure to said ditch. It also avers that plaintiff had notice of the proximity of the ditch to the street, and that she so fell into the same from want of due care, etc.

Plaintiff's evidence tended to show that she had passed along this street just before dark, on the night of the injury, on her way to church. There was no sidewalk on this street and pedestrians were accustomed to using the street as a passway. On her return from church she fell into this ditch and was hurt. The ditch was not so wide or deep as to make it necessarily dangerous. Plaintiff testified that she had not observed the ditch on passing there on her way to church, and that, in attempting to step aside, in order to avoid a muddy point, she fell into the ditch. The night was dark. Her injury was not serious. There was a fracture of a small bone of the leg; but no physician was called to treat it. She was confined for several weeks to her bed, and has ever since realized some inconvenience from the injury.

The defendant's evidence showed that the ditch was dug under directions of the street commissioner, to whom, by ordinance of the city, was committed the care and control of the streets, etc. The ditch was dug pursuant to plans devised by the commissioner.

H. M. HARVEY and DAVIS & WINGFIELD, for the appellant.

I. The damages given by the jury are excessive.

II. The seventh instruction for plaintiff lays down a measure of damages not supported by the evidence; that is to say, “to take into consideration the age and

condition in life of plaintiff,” when there was no evidence in the case showing how old plaintiff was, or what was her condition in life.

III. The city was not liable for any mistake of judgment made by its street commissioner, in planning or constructing the ditch complained of, and the fifth instruction asked by defendant should have been given. Detroit v. Beckman, 34 Mich. 125; City of Lansing v. Toolan, 2 Am. Rep. 510, and note; Imler v. Springfield, 55 Mo. 119.

IV. The instructions given for plaintiff are misleading in this, that they leave the jury to infer that it was obligatory upon defendant to keep the whole of the street in traveling condition, while the evidence showed that that part of the street which was usually traveled was kept in safe condition. Brown v. Glasgow, 57 Mo. 156.

BOYD & SEBREE and DRAFFEN & WILLIAMS, for the respondents.

I. The seventh instruction for plaintiffs properly declared the law as to the measure of damages. Russell v. Columbia, 74 Mo. 480; Loewer v. Sedalia, 77 Mo. 431. There was evidence tending to show the age and condition of life of the plaintiff. Her daughter was a witness at the trial, and testified to being twenty-three years old. So the physician Baldwin. In addition plaintiff was a witness before the jury, and they could judge of her age and condition in life.

II. The court properly refused the fifth instruction asked by the defendant. It states in substance that unless there was negligence in the plan, the finding must be for the defendant, and the fact that plaintiff fell in does not show negligence in the plan. The plan of the ditch is of no importance in considering the city's negligence, for if the city knowingly left the street in an unsafe condition, whether from the plan or the execution, whatever the cause, the negligence is actionable. 2 Dill. Mun. Corp. (3 Ed.) sect. 1024, note; Loewer v. Sedalia,supra; Russell v. Columbia, supra; Bassett v. St. Joseph, 53 Mo. 290; Blake v. St. Louis, 40 Mo. 569.

III. The fifth instruction assumes a position wholly untenable, and the authorities cited do not sustain it. The law of Detroit v. Beckman (34 Mich. 125), is not the law of this state. (See authorities heretofore cited in I and II paragraphs). In Michigan there is no implied municipal responsibility for unsafe streets. So as to the case of Lansing v. Toolan, which is also a Michigan case. See Dillon Mun. Corp. (3 Ed.) sect. 1024, note. The case of Imler v. Springfield has no application.

IV. The instructions for plaintiff are not misleading and could not have misled the jury. The fact of negligence, whether with the ditch the street was safe for travel, was expressly left to the jury to determine. Staples v. Canton, 69 Mo. 592. The case of Brown v. Glasgow, 57 Mo. 156, is distinguishable.

V. The damages are not excessive. This court will not interfere unless the damages are flagrantly excessive, or the jury has been influenced by passion, prejudice, or partiality. Goetz v. Ambo, 27 Mo. 28; Kennedy v. Railroad, 36 Mo. 351.

PHILIPS, P. J.

The only questions, important to be considered on this record, are as to the action of the trial court in giving and refusing instructions. Appellant complains of the refusal to give the following instruction:

“If the jury believe from the evidence that Charles Baldwin was street commissioner of the city of Marshall at the time the ditch in question was dug, and that, as such officer, he planned said ditch and superintended the digging of said ditch, and that said ditch was dug according to the plans made by him, then the finding must be for the defendant, unless the jury believe from the evidence that said ditch was negligently or carelessly planned, and the mere fact that the plaintiff may have fallen into such ditch will not warrant the jury in finding that said ditch was negligently planned or constructed.”

The contention of appellant's counsel is, that as the act of the street commissioner in devising the plan for the drainage of the street was a legislative, or quasi judicial act, the municipality, as such, is not answerable in damages for any injury resulting therefrom, unless the plan itself was defectively executed, of which fact there was no proof. In support of this proposition reference is made to the following adjudications: City of Detroit v. Beckman, 34 Mich. 125, and other decisions of the same court, and Imler v. City of Springfield, 55 Mo. 119.

I. It is to be conceded to appellant that the ruling of the Michigan court sustains its contention. But we are of opinion that such is not the recognized doctrine in this and other states, where jurisdiction and control over the streets and their improvement are conferred upon the municipal government, which carries with it the concomitant and imperative duty and obligation to keep its streets and sidewalks free from obstructions, and in a reasonably safe condition for the use of passers over them. Dillon in his work on Municipal Corporations, vol. 2 (3 Ed.) p. 1046, note 1, after citing the Michigan case, observes: “It seems to the author, as he understands the facts, that the case is one where the street was rendered unsafe for travel by the direct act of the city, and that the city would be held liable in those states in which an implied municipal responsibility is recognized for unsafe streets, which, however, is not the case in Michigan.” Again he observes: “Does the principle that actionable negligence cannot be predicated of the plan itself go so far as to exempt from liability if that plan leaves the streets in an unsafe and dangerous condition for public use? In the author's opinion this question ought to be answered in...

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