Keitel v. St. Louis Cable & W. Ry. Co.

• Citation: 28 Mo.App. 657
• Parties: FRITZ KEITEL, Respondent, v. ST. LOUIS CABLE & WESTERN RAILWAY COMPANY, Appellant.
• Decision Date: 31 January 1888
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 657

FRITZ KEITEL, Respondent, v. 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.

Affirmed.

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. It is not sufficient to aver generally that plaintiff was guilty of contributory negligence, but the facts must be stated. Harrison v. Railroad, 74 Mo. 364.

OPINION

THOMPSON J.

This is an action for damages for negligence. The defendant is a corporation, maintaining a cable street railway in the city of St. La. The plaintiff was injured while riding in a buggy with another person, by reason of the wheel of the buggy running into the " slot" of one of the defendant's railway tracks, whereby he and his companion were thrown out of the buggy. The petition recites that the defendant maintained two tracks on Wash street, where the accident happened; " that near the center of each of said tracks of defendant, there is an opening or slot, by which the grip used on defendant's cars is attached to the subterranean cable employed as a motor; that, by reason of the negligence and want of care of defendant and defendant's servants and employes, said slot or opening on the right-hand side of said street, at the point above mentioned, has become and was dangerously and negligently large and wide apart, so that the buggy in which plaintiff was being driven, in passing along said street, was thrown or dashed to the ground and overturned, by reason of one of its wheels sinking down through the dangerous and negligently large opening in the center of defendant's track at said point, without any fault on plaintiff's part, thereby causing plaintiff to be thrown to the ground," etc. The answer is a general denial, and contains no plea of contributory negligence.

At the trial, the plaintiff gave evidence tending to show that, on the day of the accident, he was in the employ of the St. Louis Oil Company; that he and Mr. Trauber, another employe of the same company, were driving out in an ordinary one-horse open buggy, soliciting orders for their employers; that they had occasion to drive along Wash street toward the west at a point west of Eighteenth street; that the defendant maintains on that street a double-track cable street railway; that this railway is so constructed that the power is supplied by a subterranean cable, which is taken hold of by a grip extending from one of the cars through a slot; that this slot is an aperture ordinarily three-fourths to seven-eighths of an inch in width, in an iron framework set into the street so as to be about level with the pavement, perhaps in some places a little higher; that, at the time of the accident, Trauber was driving the horse and the plaintiff was seated in the buggy by his side; that a car approached them from behind going west; that, in order to drive off from the track so as to let the car pass, Trauber turned the horse so as to describe a sort of circle; that, while crossing the iron which contains the slot, one of the wheels of the buggy sank down into it; that the horse thereby took fright and tore loose from the buggy; and that the plaintiff and Trauber were thrown out of the buggy and the plaintiff considerably hurt, one of his arms being dislocated at the elbow. The plaintiff's evidence also tended to show that he did not know that the slot was so wide at any place as to admit the wheel of a buggy. The plaintiff also gave evidence to the effect that the defendant's superintendent, about a week after the accident, admitted to him that the slot was too wide at several places along the line. No objection was made to this evidence, and the plaintiff was cross-examined by the defendant's counsel touching it. The plaintiff's evidence showed that the tire of the wheel of the buggy was an inch and a quarter in width, and his evidence tended to show that this was wider than the tires of the wheels of such buggies usually are; and the evidence generally was to the effect that it was an ordinary buggy of its class. No ordinance of the city authorizing the construction of the defendant's railway, or prescribing the width at which the slot shall be maintained, was offered in evidence.

The court submitted the case to the jury upon instructions which required them to find for the plaintiff, if they should find that the defendant, through the want of ordinary care, allowed the slot in its roadbed to become " wider than the reasonable requirements of operating its road required." The court also submitted to the jury the question of the contributory negligence of the plaintiff, upon an instruction which in itself was well drawn.

There was a verdict and judgment for the plaintiff in the sum of five hundred dollars.

I. The first point made by the appellant is, that the petition states no cause of action, inasmuch as it fails to allege that the defendant had notice or knowledge that the slot was dangerously wide at the place of the injury. There is no rule of pleading in this state which requires the plaintiff in such an action to make such an allegation. Hall v....