Bauman v. Boeckeler
| Citation | 24 S.W. 207,119 Mo. 189 |
| Parties | Bauman v. Boeckeler et al., Appellants |
| Decision Date | 23 December 1893 |
| Court | Missouri Supreme Court |
Appeal from the Franklin Circuit Court. -- Hon. Rudolph Hirzel Judge.
Reversed and remanded.
W. B Thompson for appellant Boeckeler, and J. P. Kerr for appellant Hill-Settle Tobacco Company.
(1) The court erred in permitting the plaintiff to amend the petition after the jury was sworn. (2) The court erred in permitting plaintiff to introduce any evidence in the case. 7 Gray (Mass.), 104; Lane v. Atlantic Works, 111 Mass. 136; Lyons v. Inhabitants, 119 Mass. 491; Hughs v Macfie, 2 Hurl. & Colt. 744; Mangan v. Atterton, L. R., 1 Exch. 239; McGee v. Carro, 9 C. L. J., 281; Newson v. Railroad, 23 N.Y. 388; Carter v. Town, 103 Mass. 407; Hofnagle v. Railroad, 55 N.Y. 608; Parker v. Cohoes, 10 Hunt, 531; Whittaker's Smith on Negligence, 31. (3) The court erred in admitting illegal and incompetent evidence on behalf of plaintiff against defendant's objection. (4) The court erred in making an order in appointing a next friend in said case. (5) The court erred in refusing to admit legal and competent evidence on behalf of defendant. (6) The evidence in said cause failed to show that the place where the alleged accident occurred was a public alley; plaintiff should have been nonsuited. Pentland v. Keep, 41 Wis. 490; Chestnut Hill v. Peper, 77 Pa. St. 432; Jones v. Davis, 35 Wis. 376; State v. Green, 41 Iowa 688; Green v. Bethea, 30 Ga. 896; Talbot v. Grace, 30 Ind. 389; 35 Kan. 777; Wasburn on Easements and Servitudes, pp. 129, 70, 212; Stacey v. Miller, 14 Mo. 478. (7) The evidence in said cause showed that defendant, Adolphus Boeckeler, as trustee, and those under whom he claimed had been in open, notorious, continuous and adverse possession of said premises for more than ten years prior to the institution of said suit. (8) There was no evidence of a public user of the place where the alleged accident occurred sufficient to constitute the same a public alley. See authorities cited under number 6, and, also, Institute v. How, 27 Mo. 211; Becker v. City, 38 Mo. 13; Gowan v. Co., 5 Watts & S. 141; Harkness v. Woodmansee, 26 P. (Utah), 291; State v. Proctor, 90 Mo. 334. (9) There was no evidence to designate and define the extent of a public use of the premises where the alleged accident occurred such as to constitute said place a public alley. Cowling v. Higginson, 4 M. & W. 245, and authorities cited under number 8; Wood's Law of Nuisance, 174.
W. C. Marshall for respondent.
(1) There was no error in permitting plaintiff to amend his petition after the jury was sworn. The petition charged that it was an alley. The court permitted the word "public" to be prefixed. The court distinctly told counsel that if they were surprised thereby, to file an affidavit; otherwise the case would proceed. They did not do so, so they cannot now claim this was error. Revised Statutes, sec. 2128; Calhoun v. Crawford, 50 Mo. 458. (2) There was no error in permitting plaintiff to amend his petition after the motions for a new trial were overruled, and before final judgment, by striking out the words "while some boys were playing with the same," and "upon said gate being opened and closed by said boys." First. This is distinctly permitted by statute. Revised Statutes, sec. 2098. Second. The amendment simply conformed the judgment to the facts proved. There was not a scintilla of testimony that the gate fell while some boys were playing with it, or upon said gate being opened and closed by said boys. Bennett v. McCanse, 65 Mo. 194; Blair v. Railroad, 89 Mo. 383; Carr v. Moss, 87 Mo. 447. The petition was good without amendment. Nagel v. Railroad, 75 Mo. 653. Third. This amendment was permissible, even after final judgment. Revised Statutes, sec. 2101; Carr v. Moss, 87 Mo. 447; Lamb v. Railroad, 33 Mo.App. 489. (3) The case was tried upon the question whether the alley was a public or private alley. We contend that there was no substantial conflict in the evidence that it was a public alley. But if there was a conflict, this was settled by the verdict of the jury, and will not be reviewed by this court. Reynolds v. Rogers, 63 Mo. 17; Tuggle v. Railroad, 62 Mo. 425; Peacock v. Nelson, 50 Mo. 256. (4) The evidence disclosed that the part of the alley where the plaintiff was injured had been open to the public and used by everybody without question ever since 1857; that the first intimation to anyone entering the alley that it stopped, was when the rock house and this gate with a sign on it "No admittance" was reached, which was south of where plaintiff was when he was injured. It had been in this condition over thirty years before the trial. This made it a public highway. Maus v. Springfield, 101 Mo. 613. (5) The fact that it was only open at the north end, and that at the south end it was wider than anywhere else, thereby enabling wagons to turn around at that point, does not deprive it of its public character. A cul-de-sac may be a highway. Elliott on Roads, p. 1, and note. (6) The fact that it was assessed for taxation, and that such taxes were paid, does not affect its public character. The public is not concluded from claiming an effectual dedication (by deed or user), because the land is taxed for city purposes. Dillon on Mun. Corp. [4 Ed.], sec. 633, and note; Elsworth v. Grand Rapids, 27 Mich. 250; Getchel v. Benedict, 57 Iowa 121; Lemon v. Hayden, 13 Wis. 159-663. (7) The fact that it was not paved its full length is immaterial. The extent of the user determines the extent of the alley. Maus v. Springfield, 101 Mo. 613.
OPINION
In this action, the plaintiff, who is a minor suing by his next friend, seeks to recover damages for injuries received by him from the falling of a large gate belonging to and on the premises of the defendant Boeckeler, which were at the time leased to the defendant, the Hill-Settle Tobacco Company, alleging in his petition that on the thirtieth of December, 1888, he was struck by the heavy post of said falling gate while standing in a public alley, contiguous to said premises, in city block 42, in the city of St. Louis, and which post he alleges was then, and for a long time prior thereto had been, in a decayed and dangerous condition; of which condition the said Boeckeler had knowledge when he leased the premises to the said Hill-Settle Tobacco Company. The defendants answered separately, denying the allegations of the petition and pleading contributory negligence. In the trial court, the plaintiff obtained a verdict and judgment against the said defendants for $ 3,500, and they appealed.
It appears from the evidence that city block number 42 is bounded on the north by Cedar street, on the south by Gratiot street, on the east by First street and on the west by Second street; that in the year 1886, Richard W. Ulrice died seised of all of said block except five lots in the northwest corner; that by his will he devised said real estate to the defendant Boeckeler in trust for the use of some of the testator's relatives; that the said Boeckeler accepted the trust, and as such trustee, on the third day of July, 1888, leased a portion of said real estate to the Hill-Settle Tobacco Co. described in said lease as "a certain lot of ground in city block number 42, having a frontage of 120 feet more or less on Second street and a depth of one hundred and thirty feet, more or less, running back to line of J. V. Lewis & Co." The ground thus leased to the tobacco company is represented on the following diagram by the figures A. B. C. D.
[SEE DIAGRAM IN ORIGINAL]
In 1881, prior to the death of Mr. Ulrice, the other portion of his real estate in said block represented by the figures D. C. K. L. M. on the diagram, had been leased by him to J. B. Lewis et al., successor of the Missouri Cotton Seed Oil Co. to whom the premises had been leased in 1879; the line D. C. being the line mentioned in the lease to the tobacco company, and the dividing line between the premises leased to the tobacco company and those leased to Lewis et al., successors of the oil company. On this line there was erected in 1879 a close board fence six feet high, at a point opposite the northeast corner of the stone warehouse on the diagram, and about eighteen inches from the fence, D. C., there was planted in 1880 or 1881 the gate post which fell upon the plaintiff; the post was about a foot square, ten or twelve feet long with about six or eight feet above ground, seasoned and sound when planted; to which was hung a heavy latticed gate of pine timber stayed diagonally with an iron rod and wide enough to close the space between the post at the fence and the northeast corner of the stone warehouse, against which corner it swung when closed, opening only from that corner south and east to the fence D. C., against which it rested when wide open.
It appears from the evidence that for some years prior to the year 1857, there existed an open space about twenty feet wide between the five lots belonging to different individuals in the northwest corner of the block, and the building of Mr Ulrice situate in the northwest corner of the east half of said block, extending south into the block from Cedar street about one hundred and eighteen feet to the south line of Eberlee's lot extended east, used generally by all persons desirous of getting into the rear of the premises of the owners of these five lots or into the premises of Mr. Ulrice, who at that time was using the remaining part of the block (all of which belonged to him) for the purposes of a distillery. In that year this space was recognized by the city authorities as an alley, and by ordinance it was required to be graded and paved at the cost...
To continue reading
Request your trial