Meiners v. City of St. Louis

• Citation: 32 S.W. 637,130 Mo. 274
• Parties: Meiners v. The City of St. Louis, Appellant
• Decision Date: 07 November 1895
• Court: United States State Supreme Court of Missouri

32 S.W. 637

130 Mo. 274

Meiners v. The City of St. Louis, Appellant

Supreme Court of Missouri, First Division

November 7, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

W. C Marshall for appellant.

(1) There is no evidence in this case to support the verdict and judgment. Mere user alone or mere dedication unaccompanied by an acceptance by the proper authorities, or some act done by such authorities from which acceptance may be implied, does not make the land a public highway, unless the user is continuous for the full statutory period; user alone for a less period is not sufficient to charge the public with the duty to repair. Jennings v. Tisbury, 5 Gray, 73; Rowell v. Montville, 4 Me. 272; State v Wilson, 42 Me. 9; Commonwealth v. Lowe, 3 Pick. 408; Remington v. Millard, 1 R. I. 93; Kennedy v. Cumberland, 65 Md. 514; Commonwealth v. Morehead, 118 Pa. St. 344; Getchell v. Benedict, 57 Iowa 121; Brakken v. Railroad, 29 Minn. 41; Moss v. Zeise, 34 Minn. 35. (2) The circuit court erred in refusing proper instructions asked by defendant and in giving erroneous instructions for plaintiff. Bauman v. Boeckeler, 119 Mo. 200. (3) The verdict is excessive.

Seneca N. Taylor and Charles Erd for respondent.

(1) To establish the character of the locality, where the injury occurred, as part of the public street, nothing more was essential than to show that it was in actual possession of the city, and open to, and used by the public as a thoroughfare at the time. This, plaintiff did. It was not necessary to prove a formal acceptance on the part of the city. Maus v. Springfield. 101 Mo. 613; Haniford v. Kansas City, 103 Mo. 172; Buschman v. St. Louis, 121 Mo. 523; Rose v. St. Charles, 49 Mo. 509; Price v. Breckenridge, 92 Mo. 378; Baker v. Brandenburg, 99 Mo. 378; Schenck v. Butler, 50 Mo.App. 106; Golden v. Clinton, 54 Mo.App. 100; Garnett v. Slater, 56 Mo.App. 207; Abbott v. Cottage City, 143 Mass. 521; Cook v. Harris, 61 N.Y. 448; Hanson v. Eastman, 21 Minn. 509; Kennedy v. LeVan, 23 Minn. 513; Sandborn v. Co., 16 Wis. 19; Yates v. Judd, 18 Wis. 118. (2) A city charged with the duty of keeping its highway in repair, and having means provided by taxation to discharge this duty, will be liable for negligence in its performance, if injury result from such negligence. It is its duty to keep its streets in a condition of reasonable safety for use, by night as well as by day. Maus v. Springfield, 101 Mo. 617; Franke v. St. Louis, 110 Mo. 521; Haniford v. City of Kansas, 103 Mo. 181; Roe v. City of Kansas, 100 Mo. 192; Bassett v. St. Louis, 53 Mo. 296; Bowie v. Kansas City, 51 Mo. 461; Blake v. St. Louis, 40 Mo. 571; Schenck v. Butler, 50 Mo.App. 108; Golden v. Clinton, 54 Mo.App. 109; Garnett v. Slater, 56 Mo.App. 211; Ball v. Independence, 41 Mo.App. 473. (3) All the substantial issues were presented in the instructions given, and the record shows that justice was done in the finding of the jury and the rendition of the judgment. It is a well settled doctrine in this state, when from the whole case it appears that justice has been done, though errors were committed which did not materially effect the merits, the court will not disturb the verdict. Walter v. Catchart, 18 Mo. 256; Smith v. Culligan, 74 Mo. 388; Drain v. Railroad, 86 Mo. 582; Nicholson v. Golden, 27 Mo.App. 159; Mauerman v. Railroad, 41 Mo.App. 358; Fitzgerald v. Barker, 96 Mo. 661; McGowan v. Co., 109 Mo. 518.

OPINION

Brace, P. J.

This is an action for damages for personal injuries to the plaintiff from having been thrown from a buggy in Papin street in said city, which resulted in a verdict and judgment in the circuit court for the plaintiff for $ 5,166, from which the defendant appeals.

There is no conflict in the evidence. The facts of the case sufficiently appear by the following testimony:

August Meiners, plaintiff's husband, the driver of the buggy, testified in substance as follows: "I am a teamster and reside 4322, Papin street. I had lived at my present residence about two months before the accident, and have never lived there before. On the evening of January 15, my sister-in-law, Mathilda Hollein, came up to my house to visit and spend Sunday. She was to go home on the Oak Hill train, which leaves Vandeventer station at 6:30. I started to take her down in the buggy, because my wife wanted to go out riding in the evening, and I hitched up and we drove along for about five minutes and then we collided with the stump about two blocks from Sarah street, and upset the buggy sufficiently to throw us out. The ground was frozen hard at the time and it was very dark. There was a stump in the middle of the road, with roadways on either side of the stump and running close to it. The beaten roadway was within six inches of the stump, and it was so dark at the time we could not see the stump. The roadways on either side of the stump ran within six inches of the stump. The accident happened opposite Mr. Pope's house, and we were carried in there until the physician arrived. Mrs. Meiner had her left ankle broken in two places. I visited the scene of the accident the next morning. The roadways appeared to be much traveled over, the most being apparently on the north side, and it was on the north side I drove. The wheels of the right hand side of the buggy ran upon the stump and threw us out on the north side. It was a dirt street, not macadamized, and has never been graded. Mrs. Meiners was confined to her bed six weeks. It was a thickly settled street." Witness then indicated on plat the location of the accident.

Cross-examined, witness said:

"I had never driven over that street before, but I knew it was ungraded, unpaved and not macadamized. It runs east and west. I was going eastward. I was on the north or left-hand roadway. I had one horse, and was traveling at a regular, ordinary trot. It was a two-seated vehicle. All three of us were seated on the one seat. The street was perfectly dark.

"Q. Did you guide the horse yourself, or did you let the horse take the way? A. Well, I had been driving the horse, and I had the regular stop rein on the horse, the way I always drive.

"Q. That is not answering my question. Did you guide the horse with the reins with reference to this roadway, or did you let the horse take the way? A. I held a steady rein on the horse when I was in the roadway.

"Q. Did you allow the horse to take his own way? A. Well, yes, certainly, I did allow the horse to go because I couldn't see.

"Q. You were trusting to the vision and sight of the horse? A. No, sir; not to the sight of the horse. I was careful as I could be.

"Q. I know; but you were trusting to the horse? You answered that question before, Mr. Meiners. A. Trusting to the horse, certainly, yes, sir.

"Q. And you couldn't see, yourself? A. No, sir; I couldn't see.

"Q. Was that a city bred horse, or a country bred horse? A. A city bred horse, been here for a good many years."

The plaintiff and Mrs. Hollein gave substantially the same account of the circumstances attending the injury -- the plaintiff testifying in addition as follows: "My leg was broken in two places, at the ankle and between the ankle and the knee. I was in bed six weeks and had it in plaster of Paris. I can't walk yet without some support, and I am in pain every step I take. In the morning it takes an hour before I get it so I can stand on it. It is still swollen and crooked. (At the request of her counsel witness here exhibited her leg to the jury.) It is sore and tender, and hurts me every step I take. I was never over that street before. The ground was frozen hard, because my face was cut, my eye blacked, and my teeth knocked away up in my head. They are loose yet when I chew on them, and my jawbone was hurt, and I was bruised all over. Dr. Phil. Schultz was my physician." She further testified that her age was twenty-five years.

Dr. Philip Schultz testified: "I am a physician, and attended plaintiff's injuries. She had a fracture of the outer bone in the lower leg, also a fracture of the tibia. There were also abrasions of the skin and bruises of the tissue. I treated the injuries with bandages and antiseptics. She suffered great pain. I visited her for seven weeks; after that she came to my office. Her injuries are permanent. She will always have an impediment in walking. Her foot will always turn out." Witness here illustrated with plaintiff's foot his theory that plaintiff was permanently injured, and gave his reasons why, and said her condition would not improve any. On cross-examination witness said plaintiff's condition might improve, but he didn't think it would.

It further appears from the evidence, that the residence of the plaintiff on Papin street, from which she was being driven eastwardly along it, toward Bartle or Sarah avenue, east of which is the Old Manchester road, was near the intersection of Papin street and Newstead avenue; that in so driving they first passed over that part of Papin street which was formerly dedicated to public use as Stewart avenue, in the laying out of Dean's Addition to McRee City (when the dedication took place does not appear from the evidence) thence for about six hundred feet on that part of said street condemned for public use over the land of Mary Munchow lying between the east line of said Dean's Addition and the west line of Lucas' subdivision in the Cul de Sac fields, in pursuance of an ordinance of the city passed June 30, 1890, "Entitled an ordinance to establish and open Papin street from the west line of Lucas' subdivision in the Cul de Sac fields to the east line of Dean's Addition to McRee City." They then entered upon and were passing over that part of Papin street in Lucas' subdivision, in the Cul de Sac...