The City of St. Joseph v. The Union Railway Company

Citation22 S.W. 794,116 Mo. 636
PartiesThe City of St. Joseph v. the Union Railway Company, Appellant
Decision Date19 June 1893
CourtUnited States State Supreme Court of Missouri

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Reversed and Remanded.

Thomas F. Ryan and Kelley & Kelley for appellants.

(1) The court erred in overruling defendant's objection to the introduction of testimony under plaintiff's petition. It failed to state a cause of action. Littleton v Richardson, 34 N.H. 179; Garrison v. Babbage Transportation Co., 94 Mo. 130; Russell v Place, 94 U.S. 608; Packet Co. v. Sickles, 5 Wall (U.S.) 592; 2 Black on Judgment, sec. 617; Inhabitants v. Railroad, 40 Mass. 34; Robbins v Chicago, 4 Wall (U.S.) 357. (2) The court erred in admitting the bill of exceptions taken in the case of Tippin v. St. Joseph, to be read as evidence against the objections of defendant, the same being incompetent and secondary evidence and not a part of the record proper. Greenleaf on Evidence [14 Ed.], secs. 163 and 168, p. 218. Morris v. Hammerle, 40 Mo. 489; Jackard v. Anderson, 37 Mo. 91. (3) The court erred in admitting other irrelevant, incompetent and illegal testimony introduced on part of plaintiff over defendant's objection. (4) The court erred in overruling defendant's application for a continuance. The amendment was material. It stated a new cause of action. Defendant complied with the statute in filing its affidavit showing surprise and that the defendant could not be ready for trial. The court should have granted the continuance. (5) The court erred in overruling defendant's demurrer to the evidence at the close of plaintiff's case. The demurrer should have been given. There was no evidence introduced to show the defendant's liability to the city for the damages for which it was called upon to respond on account of the injury to Tippin. It was essential to a recovery to charge and prove that defendant's act caused the injury. Robbins v. Chicago, 4 Wall (U.S.) 357; Inhabitants v. Railroad, 40 Mass. 34; 1 Herman on Estoppel, p. 158; Hooker v. Hubbard, 102 Mass. 245. (6) To authorize a recovery in this suit, plaintiff must show that the issue submitted to the jury on which they found their verdict in the case of Tippin v. St. Joseph is identical with the issue in this case. If there is even a doubt as to the fact of the issues being the same, plaintiff cannot recover in this action. Packet Co. v. Sickles, 5 Wall (U.S.) 590; Russell v. Place, 94 U.S. 606; Tutt v. Price, 7 Mo.App. 197; Bell v. Hoagland, 15 Mo. 257; Wright v. Salisbury, 46 Mo. 29; Spurlock v. Railroad, 76 Mo. 67; Bell v. Merryfield, 109 N.Y. 202; Stowell v. Chambers, 60 N.Y. 272; 2 Black on Judgment, secs. 617, 618, p. 617; Freemam on Judgment [4 Ed.], secs. 256, 259, 276 and 462, p. 256; Littleton v. Richardson, 34 N.H. 179; Hooker v. Hubbard, 102 Mass. 245; Ireland v. Emerson, 93 Ind. 1; Cook v. Burnly, 45 Texas, 97; Van Valkenburg v. Milwaukee, 43 Wis. 581; Garrison v. Babbage Trans. Co., 94 Mo. 130. (7) The court erred in refusing to permit defendant to make proof in its behalf of the kind and to the effect proposed on the trial. Even though the plaintiff had shown by its testimony that the identical issue in this cause was the same issue submitted and adjudicated on the former trial, yet it is not conclusive, but only prima facie, and the defendant may rebut the same by parol testimony. Hickman v. Mexico, 58 Mo. 61; Snorgrass v. Moore, 30 Mo.App. 232; Williams v. Iron Co., 30 Mo.App. 662; Littleton v. Richardson, 34 N.H. 179; 5 Wall supra, 591; Miller v. Deaver, 30 Ind. 371; Black on Judgment, page and sec. 628 and notes cited; Freeman on Judgment, [4 Ed.], pages and secs. 274 and 276. (8) The court erred in giving instruction asked by plaintiff directing the jury to find a verdict for plaintiff. Every issue of fact was controverted and put in issue by the defendant. It was the province of the jury and not of the court to determine the same. 2 Black on Judgment, sec. and page 631, and notes; Wells v. Zeller, 59 Mo. 509; Perkins v. Walker, 19 Vt. 144; Glasgow v. Lindley, Mo. 50 60; Wood v. Jackson, 8 Wendell, 36.

Huston & Parrish for respondent.

(1) "Munincipal corporations charged with the duty of keeping public ways in repair, have the right of indemnity against parties contracting to perform this duty who fail to fulfill it; and against parties who, by abuse of a license, or tortiously put such ways out of repair when such corporations have been compelled to pay damages to persons injured in consequence of such defect." 1 Sutherland on Damages, p. 137; Chicago v. Robbins, 2 Black (U.S.) 418; Robbins v. Chicago, 4 Wall (U.S.) 657; Wohner v. Hinston, 101 Mass. 193; Brooklyn v. Railroad, 47 N.Y. 475; Rochester v. Montgomery, 72 N.Y. 65; Troy v. Railroad, 49 N.Y. 657; Ottumwa v. Packes, 43 Iowa 119; Shearman and Redfield on Negligence [4 Ed.], sec. 301; 2 Thompson on Negligence, 789; 2 Dillon on Municipal Corporations [4 Ed.], sec. 1035, p. 1312. (2) Then the city having a right of indemnity over against the party through whose negligence it has been compelled to pay, may, by notice to such party of a pending suit therefor, make a judgment therein obtained binding on such party. Bigelow on Estoppel, p. 66; Boston v. Worthington, 10 Gray 496; Portland v. Richardson, 54 Maine 46; Troy v. Railroad, 49 N.Y. 657; Brooklyn v. Railroad, 47 N.Y. 475; Strong v. Insurance Company, 62 Mo. 289; Hoyt v. Greene, 33 Mo.App. 205; Wood v. Enser, 63 Mo. 194; cases cited under 1. (3) The petition in the Tippin case was comprehensive enough to include the issues in this case. In order to determine the identity of the negligent act, it was necessary to show what was the testimony on the former trial. The rules are: First, to determine the identity from the record. Second, if the allegations are so general that this cannot be done, testimony is admissible to show on what issues the recovery was actually had. Hickerson v. Mexico, 58 Mo. 61; Lightfoot v. Wilmot, 23 Mo.App. p. 5; Brown v. Welden, 34 Mo.App. 373. (4) The evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury. Packet Company v. Sickles, 5 Wall. (U.S.) 580; Rockwell v. Longley, 19 Pa. St. 502; Black on Judgments, sec. 628.

OPINION

Black, P. J.

William Tippin recovered a judgment against the city of St. Joseph for $ 6,000, compensation for personal injuries which he sustained by reason of a defective street. The judgment was affirmed on appeal to this court, and thereafter the city paid the judgment and then brought this suit against the defendant, a street car company, to recover the amount so paid to Tippin and the costs and expenses of that suit.

Tippin alleged in his petition that Sixth street, at a designated place, was unsafe and dangerous in this, to-wit: "The same was rough and uneven and there existed in the same excavations, gullies and holes; and in and along said street and near the center of the traveled portion of said street there was at said time a horse railroad track, the top of the rails of which were more than four inches above the surface of the street, all of which rendered said street defective, unsafe and dangerous. * * * That while plaintiff (Tippin) was driving along said Sixth street in a two horse wagon, his team became frightened and ran away and up and along said street and ran into and against and upon said holes, excavations and gullies and uneven places in said street, and on and against said railroad track, and was then and there and on account thereof thrown out of said wagon" and injured, etc.

The instructions given in that case made the city liable if there were holes and gullies in the street and the rails of the street car track were several inches above the surface of the street, rendering it unsafe for travel. The jury were also told that, although the city did not place the street car rails on the street, still, if they were there and were higher than the rest of the street, so as to make the street unsafe and unfit for use, the city was liable for injuries resulting from such defects.

On the trial of this case, the city introduced evidence tending to show notice to the defendant of the institution of the former suit and that defendant took part in the trial of that case. The city put in evidence the pleadings, verdict, judgment and bill of exceptions in the former suit; also the following ordinance:

"The said company shall construct its track of flat iron rail from their present terminus on Market square to the southern limits of the city as near as may be to the center and even with the grade of the street on which it may be laid so that the flow of water in lateral and cross gutters is not obstructed thereby, and the space between the rails shall be kept in good repair by said company, so as not to obstruct passing and crossing or traveling on said streets by other vehicles."

The city rested its case on the foregoing evidence, and the defendant moved for a non-suit, which motion was overruled. The defendant then offered to prove that its tracks were laid, kept and maintained in compliance with the ordinance, but the court excluded the evidence. The court thereupon directed the jury to find for the plaintiff.

According to the ordinance read in evidence, it was the duty of the street car company to lay its track rails even with the grade of the street and to keep the space between the rails in good repair. If Tippin was injured by the failure of the street car company to perform these duties or either of them, then it is liable over to the city for the damages sustained by Tippin. This proposition is not denied by the defendant. It was said in Strong v. Ins. Co., 62 Mo 289, that where...

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