Britton v. City of St. Louis

• Decision Date: 27 February 1894
• Citation: 25 S.W. 366,120 Mo. 437
• Parties: BRITTON v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

25 S.W. 366

120 Mo. 437

BRITTON v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

MUNICIPAL CORPORATIONS — DEFECTIVE STREET — ACTION FOR PERSONAL INJURIES — EVIDENCE — INSTRUCTIONS — WHEN APPLICABLE TO ISSUES — WHEN NECESSARY.

1. In an action against a city and contractor for injuries caused by leaving a ditch, which was partly in an alley and partly on an adjacent lot, without protection during the night, the controversy was whether plaintiff fell into the part of it that was in the alley or the part that was on the lot. Held, that plaintiff's witness could testify that the next morning he then saw the marks where plaintiff had slipped into the ditch, and that it was in the alley, in the absence of evidence that any one but plaintiff had fallen into such ditch.

2. An instruction that if the excavation "mentioned in plaintiff's petition" was made by defendant contractor, by permission of the city, and was made in the alley "in the petition mentioned," and negligently left unprotected, and that plaintiff, without fault, fell into it, and was injured, the jury should find for plaintiff, is not open to the objection that it refers the jury to the petition to find the issues, where the existence of the excavation was conceded.

3. Nor is it objectionable on the ground that it fails to leave the question of negligence to the jury.

4. The petition alleged that plaintiff received permanent injury, that his knee was permanently impaired, and that it incapacitated him from work. Evidence was introduced, without objection, that plaintiff was a day laborer, that it was a year before he could work steadily, and that his knee was permanently injured. Held, that an instruction to allow any damages resulting to plaintiff in the future, as the direct result of the injury, was not erroneous, and that an objection that there was no basis in the petition for such damage came too late, when made for the first time to such instruction.

5. Where the evidence is irreconcilable, it is proper to charge that, if the jury believe that any witness has knowingly sworn falsely to any material fact, they may disregard his entire testimony.

6. Where the court charged that the jury must find that plaintiff fell in the ditch in the alley, to entitle him to recover, it properly refused to charge that if he fell in a ditch on private property the city is not liable.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by Joseph Britton against the city of St. Louis and Thomas H. Killoran for personal injuries caused by defendants' negligence. From a judgment for plaintiff, defendants appeal. Affirmed.

W. C. Marshall, for appellants. E. B. Sherzer, for respondent.

GANTT, P. J.

This is an action for personal damages against Killoran, a contractor, and the city of St. Louis, for negligence in leaving a deep and dangerous excavation in a public alley in said city unguarded and exposed, whereby plaintiff was precipitated into it on the night of December 23, 1889, and received permanent injury to his left knee, and suffered loss of time, — being a day laborer, — and his physician's bill, bodily pain, and mental anguish, to his damage in the sum of $10,000. The answer was a general denial and contributory negligence. The plaintiff recovered a judgment against both the contractor and the city for $3,500. The place where the injury occurred was at the intersection of the north and south alley with the east and west alley in city block No. 3,447; being between Bell avenue on the north, Morgan street on the south, Vandeventer avenue on the east, and Sarah street on the west. Neither alley extended all the way through the block, but ran only to this intersection, at right angles, just west of Vandeventer, forming practically one alley. Immediately on the southwest corner of Vandeventer and Bell avenues, there was a vacant lot having a front of about 100 feet on Bell street, and extending southwardly about 155 feet to the 25-foot lot which fronted Vandeventer avenue, and the rear of which was the east line of the north and south alley and the eastern terminus of the east and west alley. Immediately west of the 100-foot lot, Martin Connelly owned 30 feet fronting Bell avenue, and which extended to the 25-foot lot which fronted Vandeventer avenue. Connelly's lot did not abut either of said alleys, but his west line was 8 feet 6 inches east of the intersection of the east line of the north and south alley with the north line of the east and west alley. Along Connelly's west line there was a board fence extending from Bell avenue to a line coincident with the prolongation of the north line of the east and west alley. The depot of the St. Louis Cable & Western Railway was located immediately west of the north and south alley, and immediately south of the east and west alley, and fronted on Morgan street. In order to go from the depot to the corner of Bell and Vandeventer avenues, the plaintiff and other employes of the railroad were in the habit of going into the north and south alley; thence, cutting across the 25-foot lot, which fronted on Vandeventer avenue, to the corner of the fence on the west of Connelly's lot; thence, across Connelly's lot, and diagonally across the 100-foot lot aforesaid. On the night of December 23, 1889, plaintiff, an employe of and laborer on the Narrow Gauge for three years, who, with three other employes, (Miller, Washoe, and Horning,) had, on invitation, made a friendly visit to the roadmaster (Auster) at his home, north beyond Bell, and near Vandeventer, was with them, near 12 at night, returning to take the last train home, which left at 12 o'clock. Having but a few minutes to spare, they hurried along south, on Vandeventer, to southwest corner, near Bell, when, hearing the engine bell ringing, and fearing to miss the train, Britton and Miller started across the plat of vacant lot, as nearest route, and which they had frequently traveled before, making for the gate on the east and west alley, opening beyond the roundhouse on the tracks of the Narrow Gauge. The others went down Vandeventer to Morgan, then up to depot. Though dark, being, from frequent traveling thereon, perfectly familiar with location and pathway, which "showed up a little white" in darkness, (Britton in the lead,) they hurried over the path to the Connelly lot, on which it forked, took left-hand path, running near southeast corner of Connelly lot, then on south adjoining lot, and, approaching mud hole thereon, (the water in which "glimmered,") skirted the same, to avoid west fence, which lay north thereof, (location of which they fixed by mudhole.) Just after passing the mud or water hole (which they did between it and fence) a few steps, Britton fell into an excavation, the existence of which, up to that time, was unknown either to him or his companions. Through these alleys there was a public sewer, with a manhole some five or six feet from the east line of the alley. About the 16th of...