28 Mo.App. 657 (Mo.App. 1888)
FRITZ KEITEL, Respondent,
ST. LOUIS CABLE & WESTERN RAILWAY COMPANY, Appellant.
Court of Appeals of Missouri, St. Louis.
January 31, 1888
APPEAL from the St. Louis Circuit Court, HON. JAMES A. SEDDON, Judge.
M. F. TAYLOR, for the appellant:
The plaintiff must allege in his complaint that defendant had notice or knowledge of the efficient cause of the injury, or ought, by the exercise of reasonable diligence, to have known it. 2 Thompson on Neg., sec. 1050. The case should have been taken from the jury, because plaintiff's own testimony and the testimony of his witnesses established the fact that his injuries were the direct result of his own negligence. Shearman & Redfield on Neg., sec. 37; Wilds v. Railroad, 24 N.Y. 430; McNiel v. Wallace, 50 Dunn. 818; Raymond v. Lowell, 6 Cush. 524; Railroad v. McDanerall, 87 Ill. 450; Week v. Railroad, 38 O. 632; Tully v. Railroad, 134 Mass. 499; Railroad v. Heileman, 49 Pa. 60; Ouscomb v. Railroad, 27 Barb. 221; Butterfield v. Foster, 11 East, 60; Cornelius v. City, 22 Wis. 635; Fox v. Town of Glastonbury, 29 Conn. 205; Myer v. Railroad, 6 Mo.App. 27; Shoenlau v. Friese, 14 Mo.App. 436; Ashbrook v. Railroad, 18 Mo.App. 290; Noland v. Shickle, 69 Mo. 366; Bassett v. St. Joe, 53 Mo. 290; Buesching v. Gas Light Co., 73 Mo. 219; Turner v. Railroad, 74 Mo. 602; Tritz v. City of Kansas, 84 Mo. 642; Kimes v. Railroad, 85 Mo. 611; Milburn v. Railroad, 86 Mo. 104; Taylor v. Railroad, 86 Mo. 460; Harlan v. Railroad, 64 Mo. 484. If both parties were negligent the plaintiff cannot recover. Myer v. Railroad, 6 Mo.App. 27; Dunn v. Railroad, 21 Mo.App. 200. The defendant was liable only in this case on the theory that its agents knew of the opening in the street, or that it had existed for a period of time sufficiently long to charge defendant with notice. Lampert v. Gas Light Co., 14 Mo.App. 395; Jordan v. City of Hannibal, 87 Mo. 673; Fitterling v. Railroad, 79 Mo. 508. The defendant in this case was not liable for the condition of the street on the same terms that the municipality would have been had the case been brought against the city. Swanson v. City of Lexington, 69 Mo. 167; Russell v. Columbia, 74 Mo. 480. Where the action is grounded upon negligence of the defendant, and the evidence shows that, notwithstanding the defendant's negligence, the plaintiff would not have sustained the injuries complained of, but for his own negligence directly tending to produce them, it is the duty of the court to direct the jury to find for defendant. Maloy v. Railroad, 84 Mo. 270; Schriener v. Railroad, 5 Mo.App. 596; Blessing v. Railroad, 7 Mo.App. 594; Milburn v. Railroad, 86 Mo. 104.
HENRY W. BOND, for the respondent:
In this state it is sufficient to allege that any act was negligently done. It is not necessary to state the particular facts constituting such negligence. Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 295; Hall v. Railroad, 74 Mo. 293; Condon v. Railroad, 78 Mo. 573; Wise v. Railroad, 85 Mo. 187. It is the duty of the city to keep its streets in a reasonably safe condition. It is a matter of defence to show the authority to make any opening there at all, especially a dangerous one. Loewer v. Sedalia, 77 Mo. 443. Contributory negligence must be pleaded. Donovan v. Railroad, 89 Mo. 147...